Town of Amherst, NY ADMINISTRATION AND ENFORCEMENT

Establishment. For the purpose of promoting the health, safety, morals, or the general welfare of the community, the Town Board is hereby empowered under § 261 of NYS Town Law to regulate and administer the provisions of this Zoning Ordinance.

Powers and Duties. The Town Board shall be responsible for final action regarding the following:

(1)

Amendments to the Zoning Map (rezoning);

(2)

Amendments to the text of this Ordinance;

(3)

Amendments to the Audubon Development Plan;

(4)

Open development areas in accordance with NYS Town Law § 280a(4);

(5)

Special Use Permit for Tier III Solar Energy systems and dormitories in the NCD zoning district;

(6)

Site plan review in the Bryant Woods development area; and

(7)

Relief of any restriction or action from any of the above.

8-1-2.

Planning Board.

Establishment. The Planning Board is established under the provisions of § 271 of NYS Town Law.

Membership, Appropriations and Terms. The Planning Board shall consist of seven members and its composition, appropriations, terms, vacancies, removals, and appointments shall be in accordance with § 271 of NYS Town Law.

Power and Duties. The Planning Board shall have the following powers and duties.

(1)

Review Authority. The Planning Board shall be responsible for reviewing and making recommendations regarding the following:

(a)

Amendments to the Zoning Map (rezoning);

(b)

Amendments to the text of this Ordinance;

(c)

Amendments to the Audubon Development Plan;

(d)

Applications for review of open development areas;

(e)

Site plan review in Bryant Woods development area; and

(f)

Relief from conditions or restrictions for actions taken under § 8-1-1B.

(2)

Final Authority. The Planning Board shall be responsible for final action regarding applications for major site plan review and relief from conditions or restrictions outside the Bryant Woods development.

[Amended 11-30-2020 by L.L. No. 17-2020]

(3)

General Authority.

(a)

The Planning Board may exercise additional powers as directed by the Town Board and as may be described elsewhere in this Ordinance and as permitted by NYS Town Law.

8-1-3.

Zoning Board of Appeals (ZBA).

Establishment. The ZBA is established under the provisions of § 267 of NYS Town Law.

Membership, Appointments and Terms.

(1)

The ZBA shall consist of five members appointed by the Town Board. The members of the ZBA as now constituted shall continue in office until the expiration of their present terms. Thereafter, their successors shall be appointed for a term of five years each. Vacancies shall be filled as provided for in the NYS Town Law.

(2)

The Town Clerk shall be the Clerk of the ZBA and shall perform such duties as required by it. The Town Board may appoint additional clerks or other employees serving at its pleasure to assist the ZBA.

Meetings.

(1)

The ZBA shall adopt rules for the conduct of its business consistent with statute and this Ordinance.

(2)

The Chair of the ZBA, or in the Chair's absence the Acting Chair, may administer oaths and compel the attendance of witnesses in the manner and to the extent permitted by NYS Town Law and the Civil Practice Law and Rules.

(3)

The ZBA may seek recommendations from the Planning Board and other agencies as it deems appropriate.

(4)

Hearings shall be public, and decisions shall be voted upon at public sessions. The ZBA may otherwise hold executive sessions in accordance with the NYS Open Meeting Law.

Minutes. The Town Clerk shall keep minutes of all proceedings before the ZBA.

Powers and Duties. The ZBA shall have the following powers and duties.

(1)

Final Authority. The ZBA shall be responsible for final action regarding the following:

(a)

Applications for variances;

(b)

Administrative appeals;

(c)

Applications for special use permits;

(d)

Applications for temporary use permits;

(e)

NYS Town Law § 280-a(3) appeal; and

(f)

Amendments to restrictions enacted by the ZBA.

(2)

General Authority.

(a)

The ZBA may exercise additional powers as directed by the Town Board and as may be described elsewhere in this Ordinance and as permitted by law.

8-1-4(1).

Planning Director.

[Amended 3-4-2019 by L.L. No. 6-2019]

Designation. The Planning Director shall be responsible for administering the certain provisions of this Zoning Ordinance as may be required under § 8-1-4C.

Delegation of Authority. The Planning Director may designate any staff member to represent the Director in any function assigned by this Ordinance. The Director shall remain responsible for any final action.

Powers and Duties. The Planning Director shall have the following powers and duties.

(1)

Review Authority. The Planning Director shall be responsible for reviewing the following:

(a)

Amendments to the Zoning Map (rezoning);

(b)

Amendments to the text of the ordinance;

(c)

Amendments to the Audubon Development Plan;

(d)

Applications for review of open development areas;

(e)

Applications for major site plan review;

(f)

Applications for temporary use permits; and

(g)

Applications for use variances.

(2)

Final Authority. The Planning Director shall be responsible for final action regarding the following:

(a)

Applications for minor site plan review; and

(b)

Coordinated sign plan review.

(3)

General Authority.

(a)

The Planning Director shall ensure compliance with the NYS Environmental Quality Review Act (6 NYCRR Part 617) and local law 3-92 Chapter 104, as amended, for all actions authorized under this Ordinance.

(b)

The Planning Director may exercise additional powers as may be described elsewhere in this Ordinance and as permitted by NYS Town Law.

(c)

The Planning Director shall perform related duties as directed by the Town Board.

8-1-4(2).

Zoning Enforcement Officer.

[Added 3-4-2019 by L.L. No. 6-2019]

Designation. The Zoning Enforcement Officer shall be responsible for administering the provisions of this Zoning Ordinance as may be required under § 8-1-4(2)C.

Delegation of Authority. The Zoning Enforcement Officer may designate any staff member to represent the Zoning Enforcement Officer in any function assigned by this Ordinance. The Zoning Enforcement Officer shall remain responsible for any final action.

Powers and Duties. The Zoning Enforcement Officer shall have the following powers and duties.

(1)

Review Authority. The Zoning Enforcement Officer shall be responsible for reviewing the following:

(a)

Amendments to the Zoning Map (rezoning);

(b)

Amendments to the text of the ordinance;

(c)

Amendments to the Audubon Development Plan;

(d)

Applications for review of open development areas (Appeal under § 280-a(3) of NYS Town Law);

(e)

Applications for major and minor site plan review;

(f)

Variances;

(g)

Applications for administrative appeal;

(h)

Applications for special use permits;

(i)

Applications for temporary use permits;

(j)

Coordinated sign plan review;

(k)

Restricted Parking Lots under § 7-1-9B(2)(b) of this ordinance.

(2)

Final Authority. The Zoning Enforcement Officer shall be responsible for final action regarding the following:

(a)

Interpretation of district boundaries;

(b)

Written interpretation of this Ordinance;

(c)

Determination of similar uses.

(3)

General Authority.

(a)

The Zoning Enforcement Officer may exercise additional powers as may be described elsewhere in this Ordinance and as permitted by NYS Town Law.

(b)

The Zoning Enforcement Officer shall perform related duties as directed by the Town Board.

(4)

Enforcement.

(a)

This Ordinance shall be administered by the Zoning Enforcement Officer. The Zoning Enforcement Officer shall notify the Commissioner of Building when it has been determined that a violation of this Ordinance may exist.

(b)

The Zoning Enforcement Officer shall recommend to the Commissioner of Building discontinuance of uses of land, structures or construction of structures or additions, alterations or other structural changes which are in violation of this Ordinance or any other law. Nothing in this Section shall limit or restrict any other procedure provided for the enforcement of this Ordinance or other applicable law.

8-1-5.

Commissioner of Building.

[Added 3-4-2019 by L.L. No. 6-2019]

Delegation of Authority. The Commissioner of Building may designate any staff member to represent the Commissioner of Building in any function assigned by this Ordinance. The Commissioner of Building shall remain responsible for any final action.

Powers and Duties. The Commissioner of Building shall have the following powers and duties.

(1)

Review Authority. The Commissioner of Building shall be responsible for reviewing the following:

(a)

Amendments to the Zoning Map (rezoning);

(b)

Amendments to the text of the ordinance;

(c)

Amendments to the Audubon Development Plan;

(d)

Applications for review of open development areas;

(e)

Applications for major and minor site plan;

(f)

Applications for Coordinated sign plan.

(2)

Final Authority. The Commissioner of Building shall be responsible for final action regarding the following:

(a)

Applications for certificates of occupancy or compliance;

(b)

Applications for floodplain development permits;

(c)

Applications for building permits including signs.

[Amended 11-30-2020 by L.L. No. 17-2020]

(3)

General Authority.

(a)

The Commissioner of Building may exercise additional powers as may be described elsewhere in this Ordinance and as permitted by NYS Town Law.

(b)

The Commissioner of Building shall perform related duties as directed by the Town Board.

(4)

Enforcement.

(a)

This Ordinance shall be enforced by the Commissioner of Building. Upon notice, the Commissioner of Building may enter any premises or building at a reasonable time to determine whether or not same is in violation of this Ordinance.

(b)

The Commissioner of Building shall order discontinuance of uses of land, structures or construction of structures or additions, alterations or other structural changes which are in violation of this Ordinance or any other law. Nothing in this Section shall limit or restrict any other procedure provided for the enforcement of this Ordinance or other applicable law.

8-1-6.

Summary of Review Authority. The following table summarizes review authority under this Ordinance. Public hearing may be required in accordance with § 8-2-3.

[Amended 5-20-2013 by L.L. No. 8-2013; 12-16-2019 by L.L. No. 22-2019]

Sec.	Review Procedure	Commis-sioner of Building	Planning Director	Zoning Board of Appeals	Planning Board	Town Board	Zoning Enforcement Officer
Approval by Town Board
§ 5-2-5(3) [Added 11-30-2020 by L.L. No. 17-2020]	Special Use Permit for Dormitories in the NCD	Review	Review		Recommend	Decision	Review
§ 6-9	Planned Unit Development	Review	Review		Recommend	Decision	Review
§ 6-10-7-3 [Added 12-14-2020 by L.L. No. 18-2020]	Special Use Permit for Tier III Solar Energy Developments	Review	Review		Recommend	Decision
§ 8-3	Amendment, Zoning Map (Rezoning)	Review	Review		Recommend	Decision	Review
§ 8-5	Amendment, Text	Review	Review		Recommend	Decision	Review
§ 8-15	Audubon Plan Amendment	Review	Review		Recommend	Decision	Review
	Review of Open Development Areas in accordance with NYS Town Law § 280a (3)	Review	Review		Recommend	Decision	Review
	Major Site Plan Review in Bryant Woods [Amended 11-30-2020 by L.L. No. 17-2020]	Review	Review		Recommend	Decision	Review
Approval by the Planning Board
§ 8-7	Major Site Plan Review outside of Bryant Woods [Amended 11-30-2020 by L.L. No. 17-2020]	Review	Review		Decision		Review
Approval by the Zoning Board of Appeals
§ 8-6	Special Use Permit		Review	Decision			Review
§ 8-8	Temporary Use Permit		Review	Decision			Review
§ 8-13	Variance			Decision			Review
§ 8-14	Adminis-trative Appeal			Decision			Review
	NYS Town Law § 280-a(3) Appeal			Decision			Review
Approval by Planning Director
§ 8-7	Minor Site Plan Review	Review	Decision				Review
§ 8-11	Coordinated Sign Plan Review	Review	Decision				Review
Approval by the Commissioner of Building
§ 8-9	Certificate of Occupancy or Compliance	Decision
§ 7-7	Floodplain Development Permit	Decision
§ 8-10	Building Permits and for Signs [Amended 11-30-2020 by L.L. No. 17-2020]	Decision
Approval by Zoning Enforcement Officer
1-11-3	Interpretation of District Boundaries						Decision
§ 8-12	Written Interpretation						Decision
§ 8-12-4 [Amended 11-30-2020 by L.L. No. 17-2020]	Determination of Similar Uses						Decision

8-1-7.

Review Authority for Sexually Oriented Businesses. In addition to any and all other necessary licenses and permits, and in accordance with § 6-6-4, a certificate of registration is required for the operation of a sexually oriented business. The application for the certificate of registration is filed with the Town Clerk and reviewed by the Commissioner of Building and the Chief of Police. Upon receipt of determinations of compliance from these officials, the Town Clerk issues either an approval or denial of the application.

[Added 7-7-2008 by L.L. No. 9-2008]

§ 8-2 Common Development Review Procedures

8-2-1.

Pre-Application Conference.

Before submitting an application for development approval, it is recommended that each petitioner schedule a pre-application conference with the Planning Director and Zoning Enforcement Officer, as applicable, to discuss the procedures, standards and regulations required for development approval in accordance with the provisions of this Zoning Ordinance.

[Amended 3-4-2019 by L.L. No. 6-2019]

A pre-application conference shall be required for the modification of an existing development without a previously approved site plan.

8-2-2.

Application Requirements. The following requirements shall apply to all applications for development review.

Who May Submit Applications.

(1)

All applications shall be reviewed by the Zoning Enforcement Officer, or Planning Director, as applicable, for their signature prior to filing with the Town Clerk. The Town Clerk shall receive payment of the required fees.

[Amended 3-4-2019 by L.L. No. 6-2019]

(2)

Applications shall only be accepted from persons having the legal authority to submit such applications. In general, applications shall be made by the owners or lessees of property, or persons who have contracted to purchase property contingent upon their ability to acquire the necessary approval under this Zoning Ordinance.

(3)

The Planning Director or Zoning Enforcement Officer, as applicable, shall require a petitioner to present additional evidence of authority to submit the application.

[Amended 3-4-2019 by L.L. No. 6-2019]

Forms.

[Amended 1-16-2007 by L.L. No. 2-2007]

(1)

All application forms shall be available either from the Planning or the Building Department, as applicable. The content of such application forms shall be determined by the Planning Director or the Commissioner of Building, as applicable, and may be amended from time to time.

[Amended 3-4-2019 by L.L. No. 6-2019]

(2)

Applications required under this Ordinance shall be submitted on forms and in such numbers as required by the Town.

Fees.

(1)

No application shall be accepted by the Town Clerk until all applicable fees, charges and expenses have been paid in full.

(2)

Filing fees shall be established from time to time by resolution of the Town Board to defray the cost of processing the application.

(3)

All required fees shall be made payable to the "Town of Amherst."

(4)

A petitioner who has paid an appropriate fee pursuant to the submission of an application, but who chooses to withdraw such application within 24 hours of application shall be entitled to a full refund upon written request to the Zoning Enforcement Officer or Planning Director, as applicable. After this 24-hour period, the petitioner may petition the Town Board for a partial refund. The Town Board may request a recommendation on any request for a refund considered under this Section.

[Amended 3-4-2019 by L.L. No. 6-2019]

Acceptance of Applications for Review.

(1)

An application and fee will be accepted for review when it contains all information necessary to determine whether or not the development as proposed will comply with all of the requirements of this Ordinance, as determined by the Planning Director, Commissioner of Building or the Zoning Enforcement Officer. In addition, an application shall not be considered complete until a SEQR determination of significance under Town Code, Chapter 104, Environmental Quality Review, can be made.

[Amended 3-4-2019 by L.L. No. 6-2019]

(2)

The presumption is that all of the information required in the Town's application forms is necessary to satisfy the requirements of this Section. However, it is recognized that each application is unique, and therefore more or less information may be required according to the needs of the particular case. The petitioner may rely on the recommendations of the Planning Director or the Zoning Enforcement Officer, as applicable, as to whether more or less information should be submitted with the application.

[Amended 3-4-2019 by L.L. No. 6-2019]

(3)

An application not considered complete within six months after the initial date of submittal shall be considered null and void, except where such application is part of an ongoing SEQR review.

8-2-3.

Notice and Public Hearings.

Public Notice Requirements.

(1)

Published Notice. For the purpose of notifying the public of all public hearing agenda items which may be considered or reviewed, notice shall be published at least once in a newspaper having general circulation in the Town for a time period as required under SEQR.

(2)

Published Notice for Rezoning to a PRD District. The published notice of any public hearing scheduled to consider the creation of a PRD district shall state that the proposed development plan, with a list of all property ownerships within the district (listed by house number, name of owner, street name and tax number), and a map of the proposed district, showing proposed use classification areas and property lines of all parcels of land included in district areas, is available for public examination in the Office of the Town Clerk, prior to the public hearing and thereafter until such time as the Town Board shall act to approve or disapprove the creation of the district and shall describe any adjustments in any regulations, standards or criteria of this Ordinance.

Courtesy Notices. These notice provisions are not jurisdictional. Failure to provide any notice or to erect or maintain the sign or failure of the notice or sign to provide the information called for shall not affect the validity of any action taken by the ZBA, Planning Board and Town Board.

(1)

Mailed Notice.

(a)

At least 10 days prior to the first public hearing, the Town Clerk shall give written notice by mail of the date, time and place of the public hearing and the street address or other identification of the property involved and a brief description of the action under consideration to each of the following:

[Amended 7-7-2014 by L.L. No. 21-2014]

(i)

The owner of the property affected by the proposal, as shown by the records of the Town Assessor, and the petitioner for the action being sought, if other than the owner;

(ii)

The owners of property located within 600 feet of the subject property, as shown by the records of the Town Assessor; or in the case of a request for an Area Variance, the owners whom abut the subject parcel and those parcels immediately across the street;

[Amended 10-17-2022 by L.L. No. 19-2022]

(iii)

Any other person who has filed a written request for notice of applications for such proposals and paid the annual fee therefor, as fixed by resolution of the Town Board from time to time. Eligibility for notice under this subsection shall expire at the end of each calendar year; and

(iv)

Any and all homeowners' or residents' associations or organizations registered with the Town Clerk having a geographical area within which the subject property is situated. Said associations or organizations shall define the geographical area they represent.

(2)

Posted Notice. At least 10 days prior to the first public hearing, the Town shall cause a two-foot by three-foot sign to be erected on the affected property, facing the nearest street, bearing the words "Zoning/Development Application Pending," together with a Planning Department telephone number to be called for additional information. The sign shall remain posted during the pendency of the application, to the conclusion of the final public hearing before the Planning Board or Town Board as the case may be, or the earlier termination of the proposal.

[Amended 10-17-2022 by L.L. No. 19-2022]

Required Hearing. A public hearing shall be required for development review as shown in the table below.

Applications for Approval	ZBA	Planning Board	Town Board
Amendment, Map (Rezoning)
Amendment, Text
Audubon Plan Amendment
Variance
Administrative Appeal
Special Use Permit			[Amended 12-14-2020 by L.L. No. 18-2020]
Site Plan, Major
Review of Open Development
Planned Development District
Temporary Use Permit
NYS Town Law § 280-a

8-2-4.

Any request to modify or remove a condition of approval for a development application will follow the same review procedures, including all required public hearing(s), as the original action.

[Added 8-1-2011 by L.L. No. 19-2011]

§ 8-3 Zoning Map Amendment (Rezoning)

8-3-1.

Applicability.

The boundaries of the Zoning Map may from time to time be amended, supplemented, changed, or modified as provided by § 264 and § 265 of NYS Town Law.

A rezoning may be initiated by the Town Board, the Planning Board, the Planning Director, the property owner of the property to be rezoned, or an authorized agent of the owner.

A rezoning may also be initiated when the owners of 50 percent or more of the subject property, excluding public streets, in any district present a signed petition to the Town Board requesting a Zoning Map amendment.

8-3-2.

Application Requirements and Development Plan for Rezoning.

An application for rezoning shall be submitted in accordance with § 8-2-2, Application Requirements.

All applications shall be complete in accordance with § 8-2-2D before the Planning Director is required to review the application. An application shall not be considered complete until a SEQR determination under Town Code, Chapter 104, Environmental Quality Review, can be made.[1]

[1]

Editor's Note: Former Subsection C, regarding additional requirements for rezoning to the SC District, which immediately followed this subsection, was repealed 12-12-2022 by L.L. No. 22-2022.

8-3-3.

Action by the Planning Director.

Upon receipt of a petition for rezoning, the Town Clerk shall transmit the application to the Planning Director for distribution to officials and agencies as deemed appropriate for their review, report and recommendation. Such officials and agencies shall each, within 30 days from receiving the petition, furnish the Planning Director a report pertinent to their respective jurisdictions.

The Planning Director shall prepare a report that reviews the rezoning request in light of any reports, recommendations, applicable plans and the general requirements of this Zoning Ordinance. A copy shall be provided to the Planning Board.

8-3-4.

Action by the Planning Board.

The Planning Board shall schedule a public hearing and give notice in accordance with § 8-2-3, Notice and Public Hearings. The Planning Board shall review the petition and evaluate the report received from the Planning Director.

Within 62 days following close of the public hearing, the Planning Board shall furnish to the town Board and petitioner either its findings that the proposed rezoning is generally consistent with the Comprehensive Plan and the regulations, standards and purpose of this Ordinance or a finding of any failure of such compliance and a recommendation that the rezoning be approved, disapproved or modified.

[Amended 2-8-2016 by L.L. No. 2-2016]

The Planning Board may include in a favorable report a recommendation that the Town Board establish conditions as a part of any resolution approving the application in order to protect the public health, safety, welfare and environmental quality of the community and is generally consistent with the policies of the Comprehensive Plan and this Ordinance.

An unfavorable report shall state clearly the reasons therefore and, if appropriate, point out to the petitioner what changes might be necessary in order to receive a favorable report.

8-3-5.

General Review Criteria. In recommending a favorable report, the Planning Board shall consider and make findings on the following matters:

The proposed zoning and development plan is generally consistent with the policies of the Comprehensive Plan and this Ordinance;

Whether or not there are adequate services and utilities available or proposed to be made available in the construction of the development;

Compatibility with the present zoning and conforming uses of nearby property and with the character of the neighborhood; and

Suitability of the subject property for uses permitted by the current versus the proposed district.

Whether the proposed change tends to improve the balance of uses, or meets a specific demand in the Town.

8-3-6.

Action by the Town Board.

Following completion of Planning Board review and upon written request by the petitioner, the Town Board shall schedule a public hearing and give notice in accordance with § 8-2-3, Notice and Public Hearings. A further public notice shall be published and paid for by the petitioner when a hearing postponement is requested by the petitioner.

If the petitioner does not request a public hearing before the Town Board as provided for by this Ordinance within six months after the Planning Board makes its report, the petition shall be deemed withdrawn.

Upon request, the Town Board shall hold the public hearing and render a decision within 62 days thereafter. The time within which the Town Board shall render a decision may be extended by mutual consent of the petitioner and the Town Board.

If the Town Board approves the amendment, supplement, change or modification to district boundaries or classifications, the Zoning Map shall be amended after publication as required by § 265 of NYS Town Law.

Amending the Zoning Map does not constitute recording of a subdivision plat nor authorize the issuance of building permits. Such actions can only be taken after site plan approval in accordance with § 8-7 or subdivision approval in accordance with the Town of Amherst Subdivision Regulations.

8-3-7.

Notice of Decision. The decision of the Town Board shall be filed in the Office of the Town Clerk within five business days after the decision is rendered, and a copy mailed to the petitioner.

8-3-8.

Resubmittal of Withdrawn or Denied Applications. When a petition has been filed and processed within 10 days prior to the scheduled public hearing of the Town Board and is thereafter withdrawn, or is withdrawn or denied after the hearing, a petition seeking substantially the same relief shall not be considered or voted on by the Town Board, except for a vote to table or to receive and file, within one year from the date of such previous filing, unless the Planning Board shall first find that there have been substantial changes which would merit a hearing or rehearing, in which case the Planning Board shall in its recommendation set forth the grounds for its determination. This restriction shall not apply where the Town Board has not finally determined the proceeding within 62 days following the public hearing.

8-3-9.

Review of Zoning Changes. The Town may review property not developed within three years following a zoning classification change to determine whether or not the classification remains appropriate. Following the review, the Town Board may call a public hearing to consider a further change in classification, as it deems appropriate.

§ 8-4 Planned District Rezoning and Planned Unit Development (PUD) Process Application.

[Amended 5-20-2013 by L.L. No. 8-2013]

8-4-1.

Applicability.

This Section shall apply to applications requesting a zoning map amendment to the PRD, PDD, or TND planned districts and for the Planned Unit Development Process (PUD), as applicable.

[Amended 9-9-2013 by L.L. No. 17-2013]

A conceptual development plan shall be required to petition to rezone to a planned district or apply for a PUD in an applicable district. The development plan shall become part of the petition for rezoning or the application for a PUD and shall be reviewed concurrently.

The conceptual development plan procedure is established to assure that the proposed petition for rezoning or application for a PUD is consistent with this Ordinance and generally consistent with the policies of the Comprehensive Plan.

A request for rezoning to a planned district or a PUD application may be initiated by the Town Board, the property owner of the property to be rezoned or an authorized agent of the owner.

8-4-2.

Application Requirements and Development Plan.

An application for planned district rezoning or a PUD application shall be submitted in accordance with § 8-2-2, Application Requirements.

A conceptual development plan shall be included with the application. The precise contents of the development plan shall be established by the Planning Director.

8-4-3.

Action by the Planning Director.

Upon receipt of a petition for planned district rezoning or an application for a PUD, the Town Clerk shall transmit the application and the associated conceptual development plan to the Planning Director for distribution to officials and agencies as deemed appropriate for their review, report and recommendation. Such officials and agencies shall each, within 30 days from receiving the petition, furnish the Planning Director a report pertinent to their respective jurisdictions.

The Planning Director shall prepare a report that reviews the planned district rezoning request or PUD application and the associated conceptual development plan in light of any reports, recommendations, applicable plans and the general requirements of this Zoning Ordinance. A copy shall be provided to the Planning Board.

8-4-4.

Action by the Planning Board.

[Amended 1-19-2021 by L.L. No. 1-2021]

The Planning Board shall schedule a public hearing and give notice in accordance with § 8-2-3, Notice and Public Hearings. The Planning Board shall review the rezoning petition or PUD application and the associated development plan and evaluate the report received from the Planning Director.

Within 62 days following receipt of the petition by the Planning Director, the Planning Board shall furnish to the Town Board and petitioner either its findings that the proposed planned district rezoning or PUD application is generally consistent with the policies of the Comprehensive Plan and the regulations, standards and purpose of this Ordinance or a finding of any failure of such compliance and a recommendation that the rezoning be approved, disapproved or modified.

An unfavorable report shall state clearly the reasons therefore and, if appropriate, point out to the petitioner what changes might be necessary in order to receive a favorable report.

Any person or persons jointly or severally aggrieved by the decision of the Planning Board concerning such plat, or the changing of the zoning regulations of such land, or any decision of an officer, department, board or bureau of the town, may have the decision reviewed by Special Term of the Supreme Court in a manner provided by Article 78 of the Civil Practice Law and Rules provided that the proceeding is commenced within thirty (30) days after the filing of the decision of the Office of the Town Clerk.

Commencement of the proceeding shall stay proceedings upon which the proceeding is appealed from.

In any such proceeding, the person or persons who commence such a proceeding shall be required to reimburse the Town of Amherst for all costs, fees and expenses associated with the production of the record of the action or actions being challenged.

8-4-5.

Review Criteria for a Planned District. In recommending a favorable report to approve a rezoning to a Planned District or a PUD application, the Planning Board shall consider and make findings on the following matters in addition to those specified in § 8-3-5:

The proposed conceptual development plan meets the purpose and objectives of the PRD, PDD, TND or the district in which the PUD is located.

For a Planned District rezoning, the proposed conceptual development plan shall meet all the use regulations of Part 6. The dimensional requirements of the PRD, PDD, or TND districts must also be met.

A PUD development plan must be consistent with all the applicable use regulations in Part 6 and the purpose statement of the zoning district in which it is located.

8-4-6.

Action by the Town Board.

If the Town Board approves a planned district rezoning the Zoning Map shall be amended after publication as required by § 265 of NYS Town Law.

Amending the Zoning Map or approval of a PUD application does not constitute recording of a subdivision plat nor authorize the issuance of building permits. Such actions can only be taken after site plan approval in accordance with § 8-7 or subdivision approval in accordance with the Town of Amherst Subdivision Regulations.

The determination by the Town Board of whether to approve rezoning to a planned district or a PUD application to adjust any regulations, standards or criteria of this Ordinance shall be based on its review of the proposed conceptual development plan, the report of the Planning Board and the Planning Director and any matters brought forth at the hearing and approval or rejection of a development plan where the Town Board has acted on its own initiative. Such approval shall include the making of the findings specified in § 8-3-5 and § 8-4-5.

The Town Board may, in order to protect the public health, safety, welfare and environmental quality of the community, attach to its resolution approving an application additional conditions or requirements consistent with this Ordinance and generally consistent with the policies of the Comprehensive Plan.

If such additional conditions or requirements are proposed, the petitioner shall be given notice by the Town Clerk in writing of such additional conditions or requirements within 15 days of the filing of the Town Board's decision. The Zoning Map shall not be amended or the PUD application shall not be deemed approved until the petitioner has filed with the Town Clerk written consent to the development plan as modified. If additional conditions or requirements are imposed by the Town Board, a restriction stating those requirements or conditions shall be noted on the deed. Failure of the petitioner to file consent with the Town Clerk within 62 days of the Town Board's action shall constitute a rejection of the conditions, and the application shall be null and void. Extensions of this period may be granted by the Town Board.

8-4-7.

Decision.

[Amended 1-19-2021 by L.L. No. 1-2021]

The decision of the Town Board shall be filed in the Office of the Town Clerk within five (5) business days after the decision is rendered. A copy of said decision shall then be mailed to the petitioner by the Town Clerk within three (3) business days of filing.

Any person or persons jointly or severally aggrieved by the decision of the Town Board may have said decision reviewed by the Special Term of the Supreme Court in a manner provided by Article 78 of the Civil Practice Law and Rules. Said proceeding must be commenced within thirty (30) days after the filing of the decision in the Office of the Town Clerk.

8-4-8.

Subsequent Amendment of Development Plan.

Amendments to conditions and restrictions shall be resubmitted and reviewed for development plan approval as if it were a new application. Any changes subject to the requirements as defined above shall be reviewed first by the Planning Board. The Town Board shall be responsible for final review and action.

Amendments to any other conditions and restrictions for the development plan shall be reviewed and approved in accordance with § 8-7-3

8-4-9.

8-4-10.

Development Plan Phasing. If the development is to be implemented in phases, each phase shall have adequate provision for access, parking, open space, recreation areas and stormwater management and other public improvements to serve the development in the event that other phases are not constructed. All proposed phasing of infrastructure and utilities shall be shown in the development plan. Where the overall development will require more than 24 months to complete, such development shall be required to be phased. Each phase shall be provided with temporary or permanent transitional features, buffers or protective areas in order to prevent damage to completed phases, to future phases and to adjoining property.

8-4-11.

Action Following Development Plan Approval. No construction or site improvement work may commence until subdivision approval has been granted, or site plan approval has been granted and all applicable permits or approvals are obtained in accordance with § 8-7, Site Plan Review.

§ 8-5 Text Amendment

8-5-1.

Applicability.

The Town Board shall consider amendments to the text of this Ordinance, as may be desired from time to time.

Such amendments shall be made in accordance with the provisions of this Section.

A request to amend the text of this Ordinance may be initiated by the Town Board, the Planning Board, the ZBA, the Planning Director, the Zoning Enforcement Officer or the Commissioner of Building.

[Amended 3-4-2019 by L.L. No. 6-2019]

8-5-2.

Action by the Planning Director, Zoning Enforcement Officer or Commissioner of Building.

When a text amendment is initiated as described in § 8-5-1C, the Planning Director, Zoning Enforcement Officer or the Commissioner of Building, as applicable, in consultation with the Town Attorney's Office, shall draft an appropriate amendment and present that amendment to the Planning Board.

The Planning Director, Zoning Enforcement Officer or Commissioner of Building, as applicable, shall prepare a staff report that reviews the proposed text amendment request. A copy shall be provided to the Planning Board.

8-5-3.

Action by the Planning Board. The Planning Board shall schedule a public hearing and give notice in accordance with § 8-2-3, Notice and Public Hearings. The Planning Board shall make a recommendation on the application to the Town Board. If the Planning Board fails to make a recommendation within 90 days, the Town Board may process the request without a recommendation.

8-5-4.

Action by the Town Board.

Before taking action on a text amendment, the Town Board shall consider the recommendations of the Planning Board, Planning Director and the Commissioner of Building, and shall schedule a public hearing and give notice in accordance with § 8-2-3, Notice and Public Hearings.

Following the public hearing, the Town Board may approve the amendment, deny the amendment, or send the amendment back to the Planning Director or Commissioner of Building, as applicable, for additional consideration.

8-5-5.

Review Criteria.

In evaluating any proposed amendment of the text of this Ordinance, the Town Board shall consider the following:

(1)

The extent to which the proposed text amendment is consistent with the remainder of this Ordinance, including, specifically, any purpose statements;

(2)

The extent to which the proposed text amendment represents a new idea not considered in the existing ordinance, or represents a revision necessitated by changing circumstances over time;

(3)

Whether or not the proposed text amendment corrects an error in the ordinance; and

(4)

Whether or not the proposed text amendment revises the ordinance to comply with state or federal statutes or case law.

In deciding whether to adopt a proposed amendment to this Ordinance, the governing principle before the Town Board is whether the proposed amendment advances the public health, safety or welfare and is consistent with this Ordinance and generally consistent with the policies of the Comprehensive Plan.

§ 8-6 Special Use Permit

[Amended 3-4-2019 by L.L. No. 6-2019; 12-14-2020 by L.L. No. 18-2020]

8-6-1.

Applicability.

Special uses within the zoning districts are generally considered to be uses which are appropriate in a particular zoning district but because of their potential for incompatibility with adjacent uses require individual review and may require the imposition of conditions in order to assure the appropriateness of the use in a particular zoning district.

A special use permit shall be required in accordance with the district use tables in Part 3, Part 4 and Part 5.

The ZBA shall hear and decide all applications for special use permits in accordance with § 274-b of NYS Town Law, with the exception of Tier III Solar Energy Systems and dormitories in the NCD zoning district.

The Town Board shall hear and decide all applications for special use permits in accordance with § 274-b of NYS Town Law for Solar Energy Systems and dormitories in the NCD zoning district.

8-6-2.

Application Requirements.

An application for a special use permit shall be submitted in accordance with § 8-2-2, Application Requirements.

All applications shall be complete in accordance with § 8-2-2D before the Zoning Enforcement Officer is required to review the application. An application shall not be considered complete until a SEQR determination under Town Code, Chapter 104, Environmental Quality Review, as amended, can be made.

8-6-3.

Action by the Planning Director. When applicable, the Planning Director shall prepare a report that reviews the request for a special use permit.

8-6-4.

Action by the Zoning Enforcement Officer. The Zoning Enforcement Officer shall prepare a report that reviews the request for a special use permit.

8-6-5.

Action by the ZBA.

Within 62 days following receipt of the application, the ZBA shall schedule a public hearing and give notice in accordance with § 8-2-3, Notice and Public Hearings.

After review of the special use permit application and the public hearing, the ZBA shall make written findings of approval, approval with modifications or conditions, or denial.

After conducting the public hearing, the ZBA shall render a decision within 62 days thereafter. The time within which the decision shall be rendered may be extended by mutual consent of the petitioner and the Board.

The ZBA may approve, approve with modifications, or disapprove the application for a special use permit.

The ZBA shall have the authority to impose such reasonable conditions and restrictions as are directly related to and incidental to the proposed special use permit. Upon approval of a special use permit, any such conditions shall be met in connection with issuance of permits by applicable agents and officers of the Town.

8-6-6.

Action by the Town Board.

Following completion of Planning Board review of a request for a Tier III Solar Energy System or dormitories in the NCD zoning district, and upon written request by the petitioner, the Town Board shall schedule a public hearing and give notice in accordance with § 8-2-3, Notice and Public Hearings. A further public notice shall be published and paid for by the petitioner when a hearing postponement is requested by the petitioner.

If the petitioner does not request a public hearing before the Town Board as provided for by this Ordinance within six months after the Planning Board makes its report of a request for a Tier III Solar Energy System or dormitories in the NCD zoning district, the petition shall be deemed withdrawn.

Upon request, the Town Board shall hold the public hearing and render a decision on a request for a Tier III Solar Energy System or dormitories in the NCD zoning district within 62 days thereafter. The time within which the Town Board shall render a decision may be extended by mutual consent of the petitioner and the Town Board.

The Town Board may approve, approve with modifications, or disapprove the application for a special use permit for a Tier III Solar Energy System and dormitories in the NCD zoning district.

The Town Board shall have the authority to impose such reasonable conditions and restrictions as are directly related to and incidental to the proposed special use permit for a Tier III Solar Energy System and dormitories in the NCD zoning district. Upon approval of a special use permit, any such conditions shall be met in connection with issuance of permits by applicable agents and officers of the Town.

8-6-7.

Review Criteria.

In rendering a decision, the ZBA and the Town Board, where applicable, shall consider and make findings that the proposed use:

(1)

Will be generally consistent with the policies of the Comprehensive Plan;

(2)

Meets any specific criteria set forth in this Ordinance;

(3)

Will be compatible with existing uses adjacent to and near the property;

(4)

Will be in harmony with the general purpose of this Ordinance;

(5)

Will not tend to depreciate the value of adjacent property;

(6)

Will not create a hazard to health, safety or the general welfare;

(7)

Will not alter the essential character of the neighborhood nor be detrimental to the neighborhood residents; and

(8)

Will not otherwise be detrimental to the public convenience and welfare.

Commercial recreation activities not conducted within completely enclosed buildings may be permitted by the Zoning Board of Appeals in accordance with this Section. In evaluating the application for the special permit, In addition to the review criteria in § 8-6-7A, the ZBA may also consider the proximity of any commercial outdoor recreation activities to residential and nonresidential properties, noise, odors, lighting and hours of operation. In approving a permit, the ZBA may impose conditions to eliminate or mitigate off-site impacts of the commercial outdoor recreation activity.

8-6-8.

Conditions on Special Use Permits.

The ZBA and the Town Board, where applicable, may impose such conditions upon the premises benefited by a special use permit as may be necessary to prevent or minimize adverse effects upon other property in the neighborhood, including limitations on the time period for which the permit is granted.

Such conditions shall be expressly set forth in the resolution authorizing the special use permit.

8-6-9.

Notice of Decision. The decision of the ZBA and Town Board, where applicable, shall be filed in the Office of the Town Clerk within five business days after the decision is rendered, and a copy mailed to the petitioner.

8-6-10.

Renewal of Special Use Permits with Specific Time Periods. Special use permits that have been issued for specific time periods are subject to review for compliance with all of the conditions imposed at the time of approval of the initial permit. Following a public hearing on the matter, the ZBA and Town Board, where applicable, may deny a renewal of a special use permit when any of the following apply:

The petitioner has failed to comply with one or more of the conditions of the prior approval;

Substantial new issues regarding the permit conditions during the operation of the use have arisen;

The general requirements of this Zoning Ordinance have not been met;

There are changes in the area or neighborhood which would be incompatible with the special use.

8-6-11.

Period of Validity.

A special use permit shall become null and void twelve months after the date on which it was issued unless the special use is established within twelve months of the date of ZBA or Town Board approval.

A special use permit shall become null and void upon a finding by the Zoning Enforcement Officer that any of the conditions in the permit have been violated.

A special use permit shall be deemed to authorize only the particular use or its operation for which it was issued, and such permit shall automatically expire and cease to be of any force or effect if such use shall, for any reason, be discontinued for a period of six consecutive months.

§ 8-7 Site Plan Review

8-7-1.

Applicability.

In accordance with § 274-a of NYS Town Law no construction or site improvement work may commence until site plan approval, where required, has been granted.

Site plan review shall not be required for development of two or fewer single- or two-family lots except in the NCD district.

The addition of residential units to a mixed use development shall be regulated by the provisions for residential units.

8-7-2.

Initial Site Plans for New Development. An initial site plan for new development shall be submitted in accordance with the following table

[Amended 5-17-2010 by L.L. No. 8-2010].

Type of Development	Major Site Plan	Minor Site Plan
RESIDENTIAL
Up to 4 Residential Units Proposed construction of 3 or 4 residential units (If proposed single family lots result in the subdivision of a parcel into 5 or more lots within a 3-year period, see Town of Amherst Subdivision Regulations) Site plan review shall not be required for development of one or two single-family lots, except in the NCD district
5 or More Residential Units Proposed construction of 5 or more residential units (If 5 or more residential lots are proposed, see Town of Amherst Subdivision Regulations)
SEQRA Type 1 Action Any proposed residential development classified as a Type 1 action under Town Code, Chapter 104, Environmental Quality Review, as amended.
NONRESIDENTIAL
Within 250 Feet of Residential Proposed nonresidential or mixed-use development located within 250 feet of residential use or zoning
Under 4,000 SF Nonresidential or mixed-use development of less than 4,000 square feet of gross floor area and beyond 250 feet from a residential lot boundary
Under 4,000 SF Nonresidential or mixed-use development of less than 4,000 square feet of gross floor area and within 250 feet of a residential lot boundary
Over 4,000 SF Nonresidential or mixed-use development of greater than 4,000 square feet of gross floor area of all buildings
Under 10,000 SF in the -TNB Overlay District and TI- Mixed Use Districts Nonresidential or mixed-use development of less than 10,000 square feet of gross floor area in the -TNB overlay district and TI- Mixed Use Districts [Added 5-17-2010 by L.L. No. 8-2010; amended 9-3-2019]
Under 25,000 sf in SC-, DC- and CTR- Mixed Use Districts Nonresidential or mixed-use development of less than 25,000 square feet of gross floor area in the SC-, DC- and CTR- Mixed Use Districts and beyond 250 feet from a residential district boundary, as measured from the work limit line [Added 9-3-2019]
Nonresidential or mixed-use development of less than 25,000 square feet of gross floor area in the SC-, DC- and CTR- Mixed Use Districts and within 250 feet from a district lot boundary, as measured from the work limit line [Added 9-3-2019]
Over 25,000 sf in the SC-, DC- and CTR- Mixed Use Districts Nonresidential or mixed-use development of more than 25,000 square feet of gross floor area [Added 9-3-2019]
SEQRA Type 1 Action Any proposed nonresidential or mixed use development classified as a Type I action under Town Code, Chapter 104, Environmental Quality Review, as amended.

8-7-3.

Modification to a Previously Approved Site Plan or Sites Developed Prior to 1968.

[Amended 2-8-2016 by L.L. No. 2-2016]

Previously approved sites shall be modified in accordance with the following table.

[Amended 2-4-2008 by L.L. No. 1-2008; 9-21-2009 by L.L. No. 14-2009; 5-17-2010 by L.L. No. 8-2010; 9-20-2010 by L.L. No. 15-2010; 2-8-2016 by L.L. No. 2-2016]

Type of Development	Major Site Plan	Minor Site Plan	Minor Adjustment
RESIDENTIAL
Adding 4 or Fewer Residential Units Addition of 4 or fewer residential units not on an individual lot
Adding 5 or More Residential Units Addition of 5 or more residential units not on an individual lot
Multifamily Landscape Plan Modifications to approved landscape plan for a multi-family residential development
Adding Accessory Structures Proposed accessory structures, such as A/C compressors, generators, tool or garden sheds, decks and gazebos
Modifications to Parking
NONRESIDENTIAL
Adding Less Than 750 Square Feet [Added 2-4-2008 by L.L. No. 1-2008]
Proposed addition of less than 750 square feet of gross floor area
Adding Between 750 and 4,000 Square Feet [Amended 2-4-2008 by L.L. No. 1-2008 and 9-20-2010 by L.L. No. 15-2010]
1. Proposed addition of between 750 and 4,000 square feet of gross floor area and within 250 feet of a residential lot boundary, as measnured[1] from the work limit line as shown on the site plan. In the event that no work limit line is shown, the property boundary shall be used as the work limit line.
2. Proposed addition of between 750 and 4,000 square feet of gross floor area and greater than 250 feet of a residential lot boundary, as measured from the work limit line.
Adding More Than 4,000 Square Feet Proposed addition of more than 4,000 square feet
Adding Less Than 10,000 Square Feet in the -TNB Overlay District Proposed addition of 10,000 square feet or less of gross floor area in the -TNB overlay district [Added 5-17-2010 by L.L. No. 8-2010]
Changes to Parking, Loading or Stacking [Amended 12-12-2011 by L.L. No. 29-2011] Any proposed changes to parking, loading or stacking located more than 250 feet from residential use or district. Changes to parking, loading or stacking located within 250 feet of residential use or district may require a major site plan at the discretion of the Planning Director
Adding Accessory Structures Accessory structures, such as generators, RPZ's, tool sheds, HVAC equipment, hot boxes, transformers, or compressors
Minor Adjustment [Amended 2-4-2008 by L.L. No. 1-2008]
Proposed modification to an approved landscape plan to preserve existing mature trees and/or vegetation or change proposed plant species or the relocation of underground utilities where such modifications are determined by the Planning Director to be consistent with the intent and objectives of the original site plan
Other [Added 9-21-2009 by L.L. No. 14-2009]
A proposed modification to a previously approved site plan where such modification is not included in any of the other categories in this section.

[1]

So in original.

No site plan review shall be required for improvements on an existing single- or two-family lot created as part of a site plan, except in the NCD district.

Notwithstanding the requirements in the table in § 8-7-3, a major site plan may be required if the Planning Director determines that the proposed modifications are not consistent with the intent and objectives of the original site plan approval or generally consistent with the policies of the Comprehensive Plan.

8-7-4.

Application Requirements.

An application for site plan review shall be submitted in accordance with § 8-2-2, Application Requirements.

The site plan shall be prepared by a NYS licensed engineer, architect, landscape architect, or surveyor, as appropriate.

The content of the site plan application shall be approved by the Planning Director prior to filing.

8-7-5.

Minor Site Plan Approval.

A minor site plan requires only Planning Director approval.

Within 30 days of receipt of a complete application, the Planning Director shall, after receiving recommendations from the Town's review agencies and any appropriate reviewing agencies, approve, approve with modifications, or deny the site plan. Where a site plan does not meet the requirements of this Ordinance, the Planning Director shall refer said site plan to the Planning Board for their review.

The Planning Director may grant minor site plan approval with conditions only to the extent that such conditions specify the actions necessary to bring the application into complete compliance with applicable regulations or where additional conditions have been agreed to by the petitioner. If the proposed minor site plan is determined to be consistent with all applicable regulations, the Planning Director shall approve the minor site plan.

The Planning Director shall have sole authority in determining the compliance of a minor site plan with the provisions of this Ordinance and generally consistent with the policies of the Comprehensive Plan.

The date the Planning Director signs the approved minor site plan shall establish the date of approval for a minor site plan.

[Added 8-1-2011 by L.L. No. 19-2011]

8-7-6.

Major Site Plan Approval. A major site plan shall require Planning Board approval.

Action by the Planning Director. Within 30 days of receipt of a complete application, and after receiving recommendations from the appropriate reviewing agencies, the Planning Director shall notify the Planning Board in writing of any comments or recommendations on the action.

Action by the Planning Board.

(1)

The Planning Board shall schedule a public hearing within 62 days of receipt of a complete application and give notice in accordance with § 8-2-3, Notice and Public Hearings. Within 62 days of the close of the public hearing, the Planning Board shall act on it and notify the appropriate agencies, petitioner and Town Clerk of its action.

(2)

The time within which the decision shall be rendered may be extended by mutual consent of the petitioner and the Board.

(3)

In determining its action, the Planning Board may seek advice from the agencies it deems appropriate.

(4)

In determining its action, the Planning Board shall also seek advice and assistance from the Town Attorney with respect to all covenants, restrictions and easements to be recorded and covenants for maintenance; the Town Engineer and Highway Superintendent with respect to improvements plans; the Commissioner of Building with respect to building plans and any other persons or committees.

(5)

The Planning Board decision date shall establish the date of approval for a major site plan.

[Added 8-1-2011 by L.L. No. 19-2011]

8-7-7.

Site Plan Review Criteria. During review of a minor or major site plan the Planning Director or Planning Board, as applicable, shall ensure that the site plan is consistent with this Ordinance and generally consistent with the policies of the Comprehensive Plan.

8-7-8.

Additional Review Criteria for Residential Site Plans. When reviewing a minor or major residential site plan, the Planning Director or Planning Board, as applicable, shall consider the following factors in addition to those described in § 8-7-7:

The adequacy of usable space for active and passive recreation including pedestrian connections;

Adequacy of open space lands for public ownership and use offered for dedication or other disposition to the town or other public entity; and

Adequacy of school sites and facilities.

The extension of roadways provided to adjacent property.

8-7-9.

Findings for Site Plan Approval. In rendering a final decision, the Planning Director or Planning Board, as applicable, shall consider and make findings that:

The proposed site plan is consistent with the development plan if one is required.

The proposed site plan is consistent with the purpose and specific requirements of this Ordinance and generally consistent with the policies of the Comprehensive Plan;

Adequate services and utilities will be available prior to occupancy; and

The site plan is consistent with all other applicable laws.

8-7-10.

Approval with Conditions. The Planning Board may grant approval with conditions only to the extent that such conditions specify the actions necessary to bring the application into complete compliance with applicable regulations and the policies of the Comprehensive Plan or where additional conditions have been agreed to by the petitioner.

8-7-11.

Notice of Decision. In accordance with NYS Town Law § 274(a), the decision of the Planning Board or Planning Director, as applicable, shall be filed in the Office of the Town Clerk consistent with all applicable state requirements.

8-7-12.

Changes in Site Plan.

At any time within 30 days following the initial site plan submission to the Planning Director, the petitioner may submit to the Planning Director site plan modifications which do not materially affect the fundamental character of a proposed site plan, and the time periods stated in this Section shall continue to apply.

If, subsequent to the approval of a site plan by the appropriate authority, the petitioner proposes any modification (other than to correct minor or technical omissions or inaccuracies) of the site plan, the procedures set forth in § 8-2-2, Application Requirements, shall be applicable to such modification, except that the materials submitted to the Planning Director shall relate only to such modification.

Minor modifications to the site plan may be approved by the Planning Director. Minor modifications include:

[Amended 12-12-2011 by L.L. No. 29-2011]

(1)

Error correction that does not alter the site plan.

(2)

Modifications that are not in violation of this Ordinance

(3)

Changes that do not affect overall site layout or properties outside of the site.

(4)

Changes that are of a lesser intensity than those listed in the table in § 8-7-3A.

(5)

Location of dumpster containers and other refuse containers, including enclosures.

8-7-13.

Subdivision Review. Site plan review under the provisions of this ordinance may occur simultaneously with subdivision plat review, where required. A single public hearing for approval of the site plan and its associated plat shall be permitted, as determined by the Planning Director.

8-7-14.

Development Phasing.

If the development is to be implemented in phases, each phase shall have adequate provision for access, parking, open space, recreation areas and stormwater management and other public improvements to serve the development in accordance with the applicable criteria in the event that other phases are not constructed.

Each phase shall be provided with temporary or permanent transitional features, buffers or protective areas in order to prevent damage to completed phases, to future phases and to adjoining property.

For developments which are developed in phases, construction of all phases of the development as shown on the approved site plan for that development shall be commenced within five years from the date of that site plan approval. If construction of all phases of a development is not commenced within five years from the date of site plan approval, the phased development is thereafter required to obtain site plan approval in accordance with the current requirements of this Ordinance in effect at the time of the next phase of development for all undeveloped phases of the original site plan. Construction of all phases of a development shall be deemed to have commenced when building permits have been obtained and construction has started for all buildings shown on the approved site plan.

8-7-15.

Period of Validity. Except for subdivision plans that have been duly filed in the Office of the County Clerk, if construction of the approved development has not commenced within two years from the time of site plan approval, that approval shall be deemed revoked. Extensions not to exceed two years may be granted by the Planning Board or Planning Director. Approval of extensions for site plans shall be made by the applicable approval body for Major or Minor Site Plan or Minor Site Adjustment. Multiple extensions may be granted.

[Amended 2-4-2008 by L.L. No. 1-2008, 4-12-2010 by L.L. No. 2-2010, and 9-20-2010 by L.L. No. 15-2010]

§ 8-8 Temporary Use Permit

8-8-1.

Applicability. The ZBA may authorize a temporary and revocable use permit for not more than two years for uses or structures that do not conform with the regulations of this ordinance for the district in which it is located.

8-8-2.

Application Requirements.

An application for a temporary use permit shall be submitted in accordance with § 8-2-2, Application Requirements.

As part of the application, written permission shall be required of the property owner expressly authorizing the petitioner to submit an application for a temporary use permit.

8-8-3.

Action by the Planning Director. The Planning Director shall issue a recommendation on the request for a temporary use permit. A copy shall be provided to the ZBA and the petitioner.

[Amended 8-20-2012 by L.L. No. 15-2012]

8-8-4.

Action by the Zoning Enforcement Officer. The Zoning Enforcement Officer shall prepare a report that reviews the request for a temporary use permit. A copy shall be provided to the ZBA and the petitioner.

[Amended 3-4-2019 by L.L. No. 6-2019]

8-8-5.

Action by the ZBA.

The ZBA shall schedule a public hearing and give notice in accordance with § 8-2-3, Notice and Public Hearings. The ZBA shall decide upon the temporary use permit by applying the required findings below.

The ZBA may authorize a temporary and revocable use permit for not more than two years for uses or structures that do not conform with the regulations of this ordinance for the district in which it is located.

8-8-6.

Required Findings. The ZBA may approve the issuance of a temporary use permit provided the following findings are made:

Such use is of a temporary nature and does not involve the erection or enlargement of any permanent structure.

In case of a renewal of such a permit, that all conditions and safeguards previously required have been met.

The proposed use:

(1)

Will be generally consistent with the policies of the Comprehensive Plan;

(2)

Meets any specific criteria set forth in this Ordinance;

(3)

Will be compatible with existing uses adjacent to and near the property;

(4)

Will be in harmony with the general purpose of this Ordinance;

(5)

Will not tend to depreciate the value of adjacent property;

(6)

Will not create a hazard to health, safety or the general welfare;

(7)

Will not alter the essential character of the neighborhood nor be detrimental to the neighborhood residents; and

(8)

Will not otherwise be detrimental to the public convenience and welfare.

8-8-7.

Incidental Development. The ZBA may authorize temporary structures or uses incidental to development, provided that the nature and scale of the development is such as to require temporary structures or uses. The permit shall be on the condition that such development proceeds diligently.

8-8-8.

Revocation of a Temporary Use Permit. A temporary use permit shall become null and void upon a finding by the Zoning Enforcement Officer that any of the conditions on the permit have been violated.

[Amended 3-4-2019 by L.L. No. 6-2019]

8-8-9.

Violation. A violation of any condition or time limit established by the ZBA under this Section shall be a violation of this Ordinance.

§ 8-9 Certificate of Occupancy or Compliance

8-9-1.

Applicability. A certificate of occupancy or compliance shall be required as a condition precedent to the occupancy and use of a structure and land as follows.

8-9-2.

Occupancy of a Structure Erected or Altered. A certificate of occupancy or compliance shall be required before occupancy of a new structure or before occupancy or use of an existing structure which has been altered, moved, changed in use or increased in off-street parking, loading or stacking requirements. The certificate shall only be issued after the erection or alteration of said structure, or a component of the structure, or after required accessory use and all approved site plan requirements have been completed and found by inspection to be in conformity with the provisions of the applicable laws and the approved site plan.

8-9-3.

Change in Use of Conforming Structure or Land. A certificate of occupancy or compliance shall be required before occupancy or use of a conforming structure or land where the specific occupancy has been changed and where, by reason of the provisions of this Ordinance or other applicable law, increased public or private facilities or modification of the structure are required. The certificate shall be issued when found by The Commissioner of Building to be in conformity with the provisions of all applicable laws.

8-9-4.

Change in Use of Nonconforming Building or Land. A certificate of occupancy or compliance shall be required whenever the specific occupancy or use of a nonconforming building or land is changed.

8-9-5.

Application Requirements.

A certificate of occupancy or compliance shall be applied for by the owner or their agent and shall be issued by the Commissioner of Building.

An application for a certificate of occupancy or compliance shall be submitted in accordance with § 8-2-2, Application Requirements.

Applications for a certificate of occupancy or compliance shall contain accurate information furnished by the owner or the owner's agent as to size and location of the lot, structures occupying the lot, the dimensions of all yards and open spaces, the use of land or structures and all additional documents as may be required by the Commissioner of Building.

A record of all applications and certificates issued shall be kept in the Office of the Commissioner of Building and shall be made available to the public during regular office hours.

8-9-6.

Record of Existing Building and Land Use. Upon application by the owner or agent, the Commissioner of Building shall inspect a building or tract of land existing on May 23, 2006 and shall issue a certificate of occupancy or compliance therefore, certifying:

The present use of the building or land;

If such use conforms to all the provisions of this Ordinance; or

If it is a lawfully existing nonconforming use.

§ 8-10 Building Permit For Signs

8-10-1.

Applicability.

[Amended 10-17-2022 by L.L. No. 19-2022]

Certain signs are allowed without a building permit for a sign (as set forth in § 7-8). Signs requiring permits are allowed in accordance with the following requirements.

A coordinated sign plan may be required prior to the issuance of a building permit for a sign in accordance with § 8-11, Coordinated Sign Plan.

8-10-2.

Permit Required for Signs. Except as otherwise provided in § 7-8, no sign may be erected, moved, enlarged, or altered except in accordance with and pursuant to a building permit for a sign. No building permit for a sign shall be issued unless the plans and information submitted demonstrate that the sign will comply with all applicable requirements of this Ordinance.

[Amended 3-4-2019 by L.L. No. 6-2019]

8-10-3.

Application Requirements. An application for a building permit for a sign shall be submitted in accordance with § 8-2-2, Application Requirements.

8-10-4.

Action by the Commissioner of Building.

The Commissioner of Building shall review each application for a building permit for a sign application for conformity with this Ordinance and act to approve, approve with conditions, or deny the permit.

The Commissioner of Building may grant approval with conditions only to the extent that such conditions specify actions necessary to bring the application into complete compliance with this Ordinance.

A sign may also require separate building or electrical permits from the Town.

8-10-5.

Period of Validity. Any permit issued for the erection of a sign shall become null and void if sign installation is not completed within six months after the date of approval.

8-10-6.

Building Permits For Temporary Signs. Permits for temporary signs shall be permitted in accordance with § 7-8-10, Temporary Signs. The approval time period shall be specified on the permit.

8-10-7.

Revocation of Maintenance of Signs.

If at any time the Commissioner of Building finds that a sign is not in good repair or does not comply with the building permit for a sign issued or with the provisions of § 7-8-11, Construction and Maintenance of Signs the Commissioner of Building shall order the owner or lessee of the premises upon which it is located, the owner and the user of the sign and the holder of the building permit for a sign to repair it or bring it into compliance with the use permit, as the case may be, or remove the sign at the direction of the Commissioner of Building.

Such order shall be written and served personally or by mail and directed to the last known address of the owner, lessee, user or holder. Failure to comply with such an order shall constitute a violation of this Ordinance.

8-10-8.

Illegal Signs. Illegal or noncompliant signs shall be removed at the direction of the Commissioner of Building.

§ 8-11 Coordinated Sign Plan Review

[Amended 4-8-2014 by L.L. No. 7-2014]

8-11-1.

Applicability. A coordinated sign plan shall be required for all signs requiring a building permit in a multiple development prior to issuance of said permit. For multiple developments in the PRD and PDD districts, the coordinated sign plan is required unless the sign regulations are superseded by the development agreement.

8-11-2.

Application Requirements.

An application for a coordinated sign plan shall be submitted in accordance with § 8-2-2, Application Requirements.

All applications shall be complete in accordance with § 8-2-2D before the Planning Director is required to review the application.

The content of the coordinated sign plan application shall be approved by the Planning Director prior to filing.

8-11-3.

Coordinated Sign Plan Review and Approval. A Coordinated Sign Plan only requires Planning Director approval. At his discretion, the Planning Director may refer said coordinated sign plan to the Planning Board for their review and decision.

When reviewing a coordinated sign plan, the Planning Director shall consider the review criteria listed in § 7-8-12.

Within 30 days of receipt of a complete application, the Planning Director shall, after receiving recommendations form the Town’s review agencies along with any appropriate outside agency, approve, approve with modifications, or deny the coordinated sign plan.

The Planning Director may grant coordinated sign plan approval with conditions only to the extent that such conditions specify the actions necessary to bring the application into complete compliance with applicable regulations or where additional conditions have been agreed to by the petitioner. If the proposed coordinated sign plan is determined to be consistent with all applicable regulations, the Planning Director shall approve the coordinated sign plan.

The Planning Director shall have sole authority in determining the compliance of a coordinated sign plan with the provisions of this Ordinance and its general consistency with the policies of the Comprehensive Plan.

The date the Planning Director signs the approved coordinated sign plan shall establish the date of approval for a coordinated sign plan.

Should questions arise regarding a sign’s conformance with an approved coordinated sign plan, the Building Department shall refer said sign to the Planning Director for determination prior to the issuance of a building permit.

§ 8-12 Written Interpretation

8-12-1.

Applicability. The Zoning Enforcement Officer shall interpret this Ordinance. Any interpretation of an order, requirement, decision or determination in connection with this Ordinance shall be final except as otherwise provided by law.

[Amended 3-4-2019 by L.L. No. 6-2019]

8-12-2.

Application Requirements. A written request for interpretation of this Ordinance shall be submitted in accordance with § 8-2-2, Application Requirements.

8-12-3.

Action by the Zoning Enforcement Officer.

[Amended 3-4-2019 by L.L. No. 6-2019]

The Zoning Enforcement Officer shall:

(1)

Review and evaluate the request as it pertains to the text of this Ordinance, the policies of the Comprehensive Plan and any other relevant information;

(2)

Consult with other Town of Amherst staff, as necessary; and

(3)

Render an opinion.

The interpretation shall be provided to the petitioner in writing by the Zoning Enforcement Officer.

8-12-4.

Determination of Similar Uses.

The Zoning Enforcement Officer may determine that a use not specifically listed in any of the permitted building and use classifications in and districts established by this Ordinance is a similar use to those enumerated in a specific district or districts. In making a determination that a use is similar, the Commissioner shall first determine that:

[Amended 3-4-2019 by L.L. No. 6-2019]

(1)

The use is not listed in any other classification of permitted uses;

(2)

The use is appropriate and conforms to the basic characteristics of the classification to which it is to be added;

(3)

The use does not create dangers to health and safety and does not create offensive noise, vibration, dust, heat, smoke, odor, glare or other objectionable influences to an extent greater than that resulting from other uses listed in the classification to which it is to be added; and

(4)

Such a use does not create traffic to a greater extent than the other uses listed in the classification to which it is to be added.

Where a use not listed in the use table is found by the Zoning Enforcement Officer not to be similar to any other use in the table, the use shall be permitted only following a text amendment of these zoning regulations in accordance with § 8-5.

[Amended 3-4-2019 by L.L. No. 6-2019]

When considering appropriate districts for a use not listed in the Use Table, the district purpose statements in Part 3, Part 4 and Part 5 and the policies of the Comprehensive Plan shall be taken into consideration.

8-12-5.

Official Record. The Zoning Enforcement Officer shall maintain an official record of the interpretation.

[Amended 12-16-2019 by L.L. No. 22-2019]

§ 8-13 Variance

8-13-1.

Applicability. The ZBA, on appeal from the decision or determination of any administrative official charged with enforcement of this Ordinance, shall have the power to grant use and area variances, subject to the standards and procedures in § 267-b of the NYS Town Law.

8-13-2.

Application Requirements. An application for a variance shall be submitted in accordance with § 8-2-2, Application Requirements.

8-13-3.

Notice and Public Hearings. Once the application has been determined complete by the Zoning Enforcement Officer, a public hearing shall be scheduled and notice shall be given in accordance with § 8-2-3, Notice and Public Hearings.

[Amended 3-4-2019 by L.L. No. 6-2019]

8-13-4.

Burden of Proof. The petitioner seeking the variance shall have the burden of presenting sufficient evidence to allow the ZBA to reach a conclusion as set forth below as well as the burden of persuasion on those items.

8-13-5.

Action by the Zoning Board of Appeals (ZBA).

After review of the variance application and the public hearing, the ZBA shall, in accordance with NYS Town Law § 267, make written findings of approval, approval with modifications or conditions, or denial.

The ZBA shall decide upon the variance within 62 days after receiving a complete application. The time within which the ZBA may render its decision may be extended by mutual consent of the petitioner and the ZBA.

In granting a variance, the ZBA may vary or modify the provisions of this Ordinance or such regulations so that the spirit of the law shall be observed, public safety secured and substantial justice done. Toward this end, the ZBA may prescribe such conditions or restrictions as it may deem necessary. Such conditions or restrictions shall be incorporated in the building permit and a violation of such permit shall be a violation of this Ordinance.

8-13-6.

Notice of Decision. The decision of the ZBA shall be filed in the Office of the Town Clerk within five business days after the decision is rendered, and a copy mailed to the petitioner.

8-13-7.

Period of Validity. Variances are valid for a period of two years from the date of approval. If the variance is not exercised within this time period, the variance shall expire. Notice of expiration shall be conveyed to the petitioner as part of the notification of approval.

§ 8-14 Administrative Appeal

8-14-1.

Applicability. The ZBA shall hear and decide appeals where it is alleged that there is an error or misinterpretation in any order, requirement, decision or determination made by the Zoning Enforcement Officer or Planning Director in regard to the enforcement of the provisions of this Ordinance or other regulations adopted pursuant to Article 16 of NYS Town Law. Rehearings shall be held only in accordance with § 267 of NYS Town Law.

[Amended 3-4-2019 by L.L. No. 6-2019]

8-14-2.

Application Requirements. An application for an appeal shall be submitted in accordance with 8-2-2, Application Requirements.

8-14-3.

Deadline for Submission. An application for an appeal shall be taken within 60 days after the filing of any order, requirement, decision, interpretation, or determination by the administrative official authorized to do so under the provisions of this Ordinance. Such application shall specify the grounds for the appeal.

8-14-4.

Record of Administrative Decision. Upon receipt of a complete application from the Commissioner of Building, the Town Clerk shall forthwith transmit to the ZBA all papers constituting the record upon which the action appealed was taken from.

8-14-5.

Action by the Zoning Board of Appeals (ZBA).

Once the application has been determined complete, a public hearing shall be scheduled and public notice shall be given in accordance with § 8-2-3, Notice and Public Hearings.

The ZBA shall decide upon the appeal within 62 days after the closing of the public hearing. The time within which the ZBA may render its decision may be extended by mutual consent of the petitioner and the Board.

The ZBA may reverse, modify or affirm, in whole or in part, any such appealed order, requirement, decision or determination appealed from and may make such order, requirement, decision or determination as in its opinion ought to be made in strictly applying and interpreting the provisions of this Ordinance and for such purposes shall have all the powers of the officer from whom the appeal is taken.

Appeals for interpretation shall be decided by the concurring vote of a majority of the members of the ZBA in compliance with § 267-a of NYS Town Law.

8-14-6.

Notice of Decision. The decision the ZBA shall be filed in the Office of the Town Clerk within five business days after the decision is rendered, and a copy mailed to the petitioner.

8-14-7.

Effect of Appeal.

An appeal stays all proceedings in furtherance of the action appealed from, unless the administrative official from whom the appeal is taken determines a stay in proceedings would cause imminent peril to life or property, in which case proceedings shall only be stayed by the issuance of a restraining order, which may be granted by the ZBA or by the court of record on the application.

An appeal does not stop action lawfully approved (including construction activities authorized by a building permit), only actions presumed in violation of this Ordinance are stayed.

8-14-8.

Challenging the Decision of the ZBA.

[Added 1-19-2021 by L.L. No. 1-2021]

Any person or persons jointly or severally aggrieved by the decision of the Zoning Board of Appeals or any officer, department, board or bureau of the town, may apply to the Supreme Court for a review by a proceeding commenced under Article 78 of the Civil Practice Law and Rules.

Such proceedings against the Zoning Board of Appeals must be commenced within thirty (30) days after the filing of the decision in the Office of the Town Clerk.

In any such proceeding, the person or persons who commence said proceedings shall be required to reimburse the Town of Amherst for all costs, fees and expenses associated with the production of the record of the action.

§ 8-15 New Community District (NCD)

8-15-1.

Application and Procedures.

General. Proceedings to create a NCD may be initiated by the Town Board with the approval of the principal owner or owners of the proposed new community site or by application of the principal owner or owners of the proposed community site. In the event that the new community site includes any lands which are not owned or controlled by a petitioner, said petitioner may request or the Town Board may require that such lands be included in the NCD by action of the Town Board taken on its own initiative simultaneously with the rezoning of the lands owned or controlled by said petitioner. In the case of proceedings begun by the Town Board on its own initiative regarding lands referred to in the preceding sentence and/or lands owned or controlled by said principal owner or owners, the public review procedure for the creation of a NCD shall be as the Town Board may require in accordance with applicable law. Accordingly, except as specified in subsection 8-15-2 of this Section, the provisions of subsection 8-15-2 of this Section are applicable only to proceedings initiated upon application of the principal owner or owners of the proposed new community site. As used in this Section, the "owner" shall be deemed to include a contract vendee or holder of an option to purchase or a person who or which has accepted any other form of firm commitment of lands to be developed for new community uses pursuant to a development plan as defined in subsection 8-15-1B of this Section.

Application for Development Plan Approval.

(1)

Concept Plan. In order to allow the Town Board and the petitioner to reach an understanding on basic design requirements prior to investment in detailed planning and design, the petitioner shall submit a concept plan to the Director of Planning showing the proposed location and components of the new community development and shall consult with the Planning Director and Planning Board concerning the procedure and criteria for approval. The purpose of the informal submission contemplated in this subsection is informational, and no formal Planning Board or Town Board action is required concerning such concept plan.

(2)

Development Plan. Formal application for a NCD shall be initiated by filing with the Town Clerk 10 copies of a development plan at an appropriate scale, not to the precision of a finished engineering drawing. It may consist of material prepared for other purposes, portions of which satisfy the formal requirements of development plans as set forth in this Section. Overlays, maps and drawings included in the submission shall be at a scale of not less than one inch to 500 feet unless otherwise specified in this subsection. The plan shall contain the following information:

(a)

The proposed new community name, date, North point and scale of the plan and a clear identification of the submittal as a development plan;

(b)

The name and address of the owner or owners of the land to be included within the NCD, the name and address of the developer(s) if other than the owner(s) and a description of the manner in which lands not owned, controlled or accepted by the principal owner, but intended for development under the development plan, are to be acquired, controlled or otherwise accepted for inclusion in such development;

(c)

An area map upon which shall be indicated the proposed NCD boundaries and major existing property ownerships and major easements within the district boundaries and at least 1,000 feet around the perimeter of the district. All property owned by the petitioner in the area shown on the map shall be identified and the amount of acreage indicated;

(d)

Aerial photographs showing the site and at least 1,000 feet around the perimeter at a scale of at least 200 feet to one inch, flown within three years of filing of the development plan and indicating any significant use changes occurring since the flight. Two such aerial photographs shall be submitted;

(e)

Topographic map at a scale of at least 200 feet to one inch showing five-foot contour levels and key-spot elevations for all land in the proposed new community site, indicating areas currently subject to flooding at one-hundred-year frequency, all major drainage ditches and all existing floodways in the town storm drainage system. Closer contours shall be provided if requested by the Town Engineer;

(f)

A description of existing surface and subsurface soils and soil conditions and an overlay map and evaluation of the soils for the proposed use;

(g)

An overlay or map and description of the existing woodland, grassland, wetland, marshland and unique natural areas and description and evaluation of their quality;

(h)

A written plan or written program indicating provisions for management and protection of soil, water, woodland, wetland, marshland, grassland and wildlife resources;

(i)

The proposed approximate location of the various uses and their estimated areas;

(j)

The general location, right-of-way width and approximate grade of all existing and proposed major highways, arterials and all major existing public and private rights-of-way and easements;

(k)

Approximate magnitude and general composition of the residential development in terms of the total number of dwelling units, with an analysis of such total number indicating the proposed range of housing costs and a numerical breakdown by dwelling unit type (for example, single-family, two-family, townhouse, patio house, garden apartments or student or elderly housing) and number of units, if any, proposed for real estate tax abatement. The petitioner shall also furnish a calculation of the residential density in dwelling units per gross acre. Such calculation shall conform to the requirements of 5-2-6A;

(l)

The approximate location, dimensions and proposed general uses of the major open space system, including private, common and public land;

(m)

The overall proposed major storm drainage system, including the direction of flow and location of major existing and proposed storm sewers and drainageways, description of stormwater storage and movement features and treatment of floodways and drainageways, if existent;

(n)

Major existing and proposed linkages to the community at large with respect to pedestrian and vehicle transportation, water supply, sewage disposal, stormwater drainage, open space and recreation;

(o)

The proposed sanitary sewage disposal system serving the new community, including its projected load and the effect it will have on the existing and proposed town disposal system;

(p)

Estimated future population of school-age children by age level, with anticipated breakdown between private and public school pupils and the method by which such lands are proposed to be made available to such school districts; and

(q)

General description of the proposed provision of other community facilities, such as fire protection services and cultural facilities, if any, and indication of how these needs are proposed to be accommodated.

(3)

Documentation. The following documentation shall accompany the development plan:

(a)

Evidence of how the petitioner's particular mix of land uses meets existing or future community demands and needs and objectives of the Town Master Plan;

(b)

General statement as to how common open space is to be owned and maintained and how it will meet the applicable criteria set forth in this Section;

(c)

The expected completion date of the new community development;

(d)

If the development is to be phased, a general statement of how the phasing is expected to proceed with regard to time and sequential factors. This may include a schedule of construction commencement and completion dates of major improvements. Whether or not the development is to be phased, the development plan shall show the intended total project. If phasing is proposed, the plan shall show how the phasing criteria set forth in this Section will be met; and

(e)

Evidence to demonstrate the petitioner's competence to undertake the organizational and financial aspects of the project.

8-15-2.

Planning Board Review.

Upon receipt of a petitioner's development plan of a new community development, the Director of Planning shall transmit a copy of the plan and accompanying documentation to the Town Engineer, Highway Superintendent, the school districts and such other agencies as the Director may deem appropriate for their review, report and recommendation. Such officials and agencies shall each, within 30 days from receiving the development plan and documentation, furnish to the Planning Board a report pertinent to their respective jurisdictions and concerns.

The Planning Board shall review the petitioner's development plan and related documents and evaluate the reports enumerated above. Within 60 days following the petitioner's submission of the development plan and data to the Planning Board, the Planning Board shall furnish to the Town Board and petitioner either its finding that the development plan complies with the regulations, standards and criteria prescribed by this Section or a finding of any failure of such compliance and a recommendation that the development plan be approved, disapproved or modified.

If in any such evaluation the Planning Board finds that any submission requirements, regulations, standards or criteria prescribed by this Section are inapplicable because of unusual conditions of the new community development or the nature and quality of the proposed design, it may recommend to the Town Board that an adjustment in such regulations, standards or criteria be made for the development or a proposed site in the development.

(1)

A favorable report shall include a recommendation to the Town Board that a public hearing be held for the purpose of considering the creation of a NCD. It shall be based on the following findings which shall be included as part of the report:

(a)

The proposed development plan meets the purpose of a NCD as expressed in 5-2-1;

(b)

The proposed development plan meets all the requirements of §§ 5-2-3 and 5-2-4 through 5-2-5B;

(c)

The proposed development plan is conceptually sound in that it meets present and future community needs;

(d)

There are adequate services and utilities available or proposed to be made available in the construction of the development; and

(e)

The proposed development plan is consistent with the Town Master Plan.

(2)

An unfavorable report shall state clearly the reasons therefore and, if appropriate, point out to the petitioner what changes might be necessary in order to receive a favorable report. The petitioner may, within 10 days after receiving an unfavorable report, file an application for a NCD with the Town Clerk. The Town Board then shall hold a public hearing for a NCD and shall render a decision within 60 days after filing of such application.

8-15-3.

Town Board Action. Either upon receipt of a favorable report from the Planning Board as described in subsection 8-15-2 or at any time following the submission of a proposed development plan (making the applicable requirements of § 5-2-2) by the Director of Planning in the case of proceeding on the Town Board's initiative, the Town Board shall schedule a public hearing and give notice in accordance with § 8-2-3, Notice and Public Hearings for the purpose of considering the creation of a NCD in accordance with the procedures established under the NYS Town Law or other applicable law. In the case of proceedings initiated by a petitioner under subsection 8-15-1, the Town Board shall hold a public hearing for a NCD and render a decision within 60 days of the receipt of the favorable report from the Planning Board. The published notice of any public hearing scheduled to consider the creation of a NCD under this Section shall state that the proposed development plan, with a list of all property ownerships within the district (listed by house number, name of owner, street name and tax number), and a map of the proposed district, showing the proposed use classification areas and property line of all parcels of land included in district areas, are available for public examination in the office of the Town Clerk, prior to the hearing and thereafter until such time as the Town Board shall act to approve or disapprove the creation of the district.

8-15-4.

Zoning for District. The determination by the Town Board of whether to create a NCD shall be based on its review and approval of a development plan. Where the Town Board has acted on its own initiative, such approval shall include the making of the findings specified in paragraph 8-15-2C(1) of this Section. Upon the creation of a NCD in such a manner, the Zoning Map shall be notated. The Town Board may, in order to protect the public health, safety, welfare and environmental quality of the community, attach to its zoning resolution additional conditions or requirements consistent with the purposes and requirements of this Section for the petitioner to meet. If such additional conditions or requirements are proposed, the petitioner shall be given notice in writing of such additional conditions or requirements at least 15 days prior to the creation of the NCD. Such rezoning shall apply to all lands within the boundaries of the NCD, provided that in order to protect the interests of owners of lands in said district which have not been purchased for or otherwise firmly committed to the new community development contemplated by the development plan, the substantive zoning requirements and the zoning procedures which were applicable to any such nonacquired or noncommitted lands prior to such rezoning shall be deemed incorporated in this Section so as to remain applicable to said lands until such acquisition shall occur or until such firm commitment shall be accepted, at which time such prior requirements and procedures shall cease to be applicable and the new community requirements and procedures of this Section shall become applicable. In considering any petition for rezoning of any such lands submitted prior to such acquisition or firm commitment, the Planning Board and Town Board shall include in their evaluation the compatibility of the petitioner's proposed use with the use of such lands contemplated by the development plan approved by the Town Board.

8-15-5.

Site Plan Approval.

Application for Site Plan Approval. After the Town Board creates a NCD and approves a development plan on its own initiative or on application, a site plan application or applications covering all or portions of the district intended for new community development under the development plan shall be submitted to the Town Board and Planning Board. The petitioner shall be the entity which was the principal owner of the new community site, as contemplated in subsection 8-15-1 above at the time of such Town Board approval of the development plan, or the designee of such entity. All of the lands covered by such site plan application shall be owned, controlled or otherwise accepted by such principal owner or its designee. The area covered by said application is referred to as the "proposed site." The application shall be accompanied by the information required on the development plan, including the necessary modifications or changes previously required, and by the following more detailed information in 10 copies prepared by licensed or accredited engineer, surveyor, architect or landscape architect, as appropriate.

(1)

Site Plan. The following new information shall be included on an accurate site plan at a scale of at least one inch equals 100 feet:

(a)

Title of drawing and name of development, if any, covered by the site plan, including the name of the petitioner and person who prepared the drawing, North point, scale and date.

(b)

Location of survey datum and name of surveyor.

(c)

Boundaries of the proposed site and its acreage.

(d)

The lines of existing and proposed vehicular, bicycle and pedestrian circulation systems within, connecting to and immediately adjoining the proposed site.

(e)

All street names, including stub streets. No street name change shall be made following site plan approval unless approved by the Planning Board.

(f)

Preliminary layout of proposed property and lot lines, including property which is to be offered for dedication or other disposition for public ownership and use with the purpose indicated, and property that is proposed to be reserved by deed covenant for common use.

(g)

Location, proposed use, type, floor area and height of all buildings, location of all parking and service areas with access drives thereto; location, uses and proposed improvements of all open reservations.

(h)

Topography at one-foot contour levels.

(i)

Existing wet and dry watercourses and direction of flow.

(j)

Location of all existing and proposed site improvements, including drains, culverts, retaining walls and fences; description of method of water supply and sewage disposal and capacity and location of such facilities; location and proposed development of buffer areas; general location, material and approximate size of all architectural monuments and permanent signs; size and general design of street lighting fixtures.

(k)

Provision for all stormwater management, including retention areas, open stormwater facilities and underground tiled drainage as well as drainage channels both proposed and to remain, including data or gradients of the new system relative to existing facilities. This shall include all ditches, ponds and like facilities, including the acre-feet and/or cubic-foot-per-second capacity of such facilities where applicable. Such facilities shall provide, by the combination of storage and/or improved stream flow, completely for the stormwater on the proposed site plan area and shall provide the land or other facilities necessary to permit water movement from adjacent properties. To meet this requirement, such facilities may be augmented by appropriate facilities located outside the site plan area which are committed to be in service upon the completion of the development described by the site plan.

(l)

An overlay showing soil types and their stratification and areas, if any, with moderate to high susceptibility to ponding and moderate to high susceptibility to erosion. For areas with potential erosion problems, the overlay shall also include an outline and description of existing vegetation and the program to be undertaken to correct potential erosion problems. In addition another overlay of the proposed improvement shall be provided and shall describe the following:

(i)

Location and type of floodproofing measures where they are needed, e.g., backyard drainage, fill locations and elevations. Indication of floodproofing measures for buildings planned for flood hazard areas.

(ii)

Existing inventory and plans to preserve topsoil, deal with seasonal high groundwater table problems, stabilize cut and fill banks and provide for open space and the preservation of valuable natural vegetation, woodland, grassland, wetland, marshland, unique natural areas and wildlife resources.

(m)

Preliminary construction plans and specifications for all public improvements, including construction detail sheets which shall show the following information:

(i)

Preliminary profiles showing existing and proposed elevations along the center lines of all streets. Where a proposed street or streets, the elevation along the center line of the existing street or streets, within 100 feet of the intersection, shall be shown. All elevations shall be referenced to establish United States government or approved local bench marks where they exist, within one-half mile of the boundary of the site plan area.

(ii)

Preliminary plans and profiles showing the locations and a typical cross section of street pavements, including curbs and gutters, sidewalks, manholes and catch basins; the locations of street trees, street lighting standards and street signs; the locations, size and invert elevations of existing and proposed sanitary sewers, stormwater drains and fire hydrants; and the location and size of all underground utilities or structures.

(n)

A landscape plan indicating wooded areas and other natural features to be created and/or preserved and trees in public street rights-of-way. There shall be information provided for the Planning Board to determine whether the standards outlined in 5-2-7 are met.

(o)

An updated development schedule covering the site plan area. The schedule shall include the improvement of open space, the construction of buildings and structures in the open space and the construction of other improvements in the site plan area and the proposed coordination of such activities.

(2)

Schematic layout of the street lighting system

(3)

A description of the proposed types of covenants running with the land and of deed restrictions, of covenants, restrictions or easements proposed to be recorded and of covenants proposed for maintenance.

(4)

An estimate of the number of bedrooms to be contained in the various types of residential units.

(5)

If the petitioner is a developer designated by the owner, a statement of the developer's experience and financial capacity to carry out the site plan development.

Factors for Consideration. The Planning Board's review of a site plan shall be directed to the following considerations:

(1)

Extent to which the site plan embodies the goals and objectives of this Section and the development plan previously approved by the Town Board.

(2)

Adequacy and arrangement of vehicular traffic access and circulation, including intersections, road widths, channelization structures and traffic controls.

(3)

Adequacy and arrangement of pedestrian traffic, access, walkway structures, control of intersection with vehicular traffic and pedestrian convenience.

(4)

Location, arrangement, appearance and sufficiency of off-street parking and loading.

(5)

Location, arrangement, size and design of buildings, lighting, signs and monuments.

(6)

Relation of the various uses to one another and their scale.

(7)

Adequacy, type and arrangement of trees, shrubs and other landscaping constituting a visual and/or deterring buffer or weather buffer between adjacent uses and adjoining lands.

(8)

The adequacy of usable open space for active and passive recreation.

(9)

The preservation of outstanding and/or unique natural features and the preservation and/or creation of natural woodlands, grasslands and marshland.

(10)

Adequacy of facilities for sanitary waste disposal and stormwater storage and disposal, including drainage canals, ponds and water storage in relation to location in the watershed.

(11)

Adequacy of open space lands for public ownership and use offered for dedication or other disposition to the town or other public entity.

(12)

Adequacy of structures, roadways, utilities and landscaping in areas with moderate to high susceptibility to flooding, ponding and/or erosion.

(13)

Protection of adjacent properties against noise, glare, unsightliness or other objectionable features.

(14)

Capacity of proposed public facilities and services to serve projected needs of the new community.

(15)

Adequacy of existing public facilities and services to serve projected needs of the new community.

(16)

Adequacy of school sites and facilities to serve the new community.

Action on Site Plan Application.Within 62 days following close of its public hearing on a site plan, the Planning Board shall act on it and deliver to the Town Board and the petitioner a report of its action. In determining its action, the Planning Board may seek advice and assistance as needed from the Town Attorney with respect to all types of covenants, restrictions and easements to be recorded and covenants for maintenance and from the Town Engineer, Highway Superintendent and any other persons or agencies. If, in its review of the site plan, the Planning Board finds that any regulations, standards or criteria prescribed by this Section are inapplicable because of unusual or unforeseen conditions affecting the proposed site plan development or because of the nature of quality of the proposed design, it may recommend to the Town Board that an adjustment be made in such regulations, standards or criteria consistent with the purposes of this Section as applied to the proposed site plan development. The Town Board also may allow such adjustments upon its own initiative. The Planning Board's report shall include a written statement stating whether or not the site plan is approved, accompanied by a copy of the appropriate minutes of the Planning Board, including exhibits and submissions made a part of the record, and by a separate detailed statement of the basis for any Planning Board determination of noncompliance with any substantive criterion, standard or regulation of this Section. A copy of such report shall be delivered to the petitioner promptly following such approval or disapproval of the site plan. Within 30 days of the receipt of a favorable report of the Planning Board or within 30 days following the delivery to the Town Clerk of a petitioner's request for Town Board review by an unfavorable report by the Planning Board or review by the Town Board if the Planning Board has not acted during the 60-day period specified above for such Planning Board action, the Town Board shall act to approve or disapprove the site plan. In any event, if the Town Board does not approve or disapprove the site plan within 90 days following the initial submission of the site plan to the Planning Board and the Town Board under subsection A, the petitioner may notify the Town Board by delivery to the Town Clerk of written notice of its intent to proceed with construction as if the site plan has been approved. If the Town Board does not approve or disapprove the site plan within 10 days following the delivery of such notice to the Town Clerk, the site plan shall be deemed to have been approved by the Town Board for all purposes under this Section.

[Amended 2-8-2016 by L.L. No. 2-2016]

Town Board Procedures. In taking any actions or conducting any proceedings relating to the responsibilities of the Town Board under subsection C above, the Town Board shall act as the local public body responsible for administering the substantive criteria, standards and regulations of this Section. The Town Board shall keep accurate minutes of all such actions or proceedings and shall furnish to the petitioner for site plan approval, within 10 days following any such action or proceeding, a complete copy of the minutes, including exhibits and submissions made a part of the record, describing the action or proceeding. The official record of such actions or proceedings shall include any materials or documents submitted by the petitioner to the Town Board and/or Planning Board in connection with the application for site plan approval. If the Town Board determines that a site plan does not comply with any substantive criterion, standard or regulations of this Section, then the record of such determination, to be delivered to the petitioner as aforesaid, shall include a separate statement setting forth in detail the exact nature of such noncompliance and all factors included in the basis for the Town Board's determination. After the submission of a site plan to the Town Board and Planning Board, as provided in subsection A(1), and so long as any Planning Board or Town Board procedures contemplated by this subsection A(1) shall be in progress, the petitioner shall be afforded a reasonable opportunity, on one or more occasions as circumstances require, to appear before the Town Board and/or the Planning Board on reasonable notice to present its position concerning compliance of the proposed site plan with the substantive criteria, standards and regulations of this Section.

8-15-6.

Conformity to Development Plan. It is expected that the site plan will be in substantial conformance with the goals and objectives of the development plan approved by the Town Board. However, if in the preparation of the site plan it becomes apparent that certain elements of the development plan, as it was approved by the Town Board, were infeasible and in need of significant modification, or have become so since such approval, the petitioner may incorporate the necessary development plan modifications in the site plan. The Planning Board shall then determine whether the site plan embodying such modifications is in keeping with the purpose of this Section. The Planning Board shall; as part of its report referred to in subsection 8-15-5C above, notify the Town Board and the petitioner of its recommendations in such regard, stating all of the factors involved and its reasons for recommending approval or disapproval of any such modifications. Within 30 days of such notification, or within 30 days following the delivery to the Town Clerk of a petitioner's request for review as described in subsection 8-15-5C, the Town Board shall act to approve or disapprove a site plan incorporating modifications of the development plan. The provisions of the preceding subsection 8-15-5D shall be applicable to Town Board action or proceedings under this subsection.

8-15-7.

Changes in Site Plan.

If, subsequent to the approval of a site plan, the petitioner proposes any modification other than a minor modification or to correct minor or technical omissions or inaccuracies of said site plan, the procedures set forth in subsection 8-15-5A shall be applicable to such modification, except that the materials submitted shall relate only to the modification.

At any time within 75 days following the initial site plan submission to the Town Board and Planning Board, the petitioner may submit to the Planning Board and Town Board site plan modifications which do not materially affect the fundamental character of a proposed site plan development, and the time periods stated in this Section shall continue to apply with respect to the overall site plan submission notwithstanding said modifications. The 90-day period for Town Board action shall be extended by an additional 10 days for each such modification submitted after the expiration of said 75-day period.

8-15-8.

Commencement of Construction.

Upon the approval of a site plan by the Town Board, or upon the expiration of the 10-day period relating to inaction by the Town Board, the petitioner or its designee may commence site improvement work for all aspects of the development covered by such site plan.

The following actions shall not require additional development review:

(1)

The commencement or continuation of such site improvement work;

(2)

The use or occupancy of any improvements constructed in accordance with such site plan and accompanying materials;

(3)

The connection or tie-in of such improvements to public or private improvements;

(4)

The dedication or other disposition of such improvements or lands included in the site plan for public use;

(5)

The construction of any public improvements;

(6)

The filing of a subdivision plat with the Town and County Clerks; or

(7)

The issuance of any public improvement approvals or building construction code approvals.

8-15-9.

Planning Board Action on Site Plans. Except for lands located within Bryant Woods and the provisions of subsection 8-15-6 requiring Town Board approval or disapproval of modifications to the development plan proposed as a part of a site plan, anything contained in these regulations for the NCD to the contrary notwithstanding, the Planning Board shall have sole and exclusive jurisdiction to review and approve or disapprove, modify, change, condition or restrict any site plan and, to that end, will have and exercise all authority otherwise granted to and perform all duties imposed upon the Town Board in connection therewith.

8-15-10.

Development Phasing. If the petitioner wishes to phase the development, the petitioner may submit only those phases the petitioner wishes to develop for site plan approval in accordance with the phasing plan. Where the overall development of an entire new community site will require more than 24 months to complete, such development shall be required to be phased. If the development is to be implemented in phases, each phase shown on a site shall have adequate provision for access, parking, open space, recreation areas and stormwater management and other public improvements in accordance with the applicable site plan approval criteria set forth in this Section. Each phase shall contain facilities to appropriately serve the functions described in the preceding sentence in the event that other phases of the new community are not constructed. Each phase shall be provided with temporary or permanent transitional features, buffers or protective areas as will prevent damage or detriment to completed phases, to future phases, to adjoining properties not in the new community site or to adjoining properties in the new community site but not to be developed in accordance with the development plan.

8-15-11.

Other Applicable Regulations.

Regulations After Initial Construction and Occupancy. For the purposes of regulating the development and use of property after completion of initial construction and occupancy, any proposed changes shall be in the form of a request for a special permit requiring Town Board approval. It shall be noted, however, that properties lying in NCDs are unique and shall be so considered by the Planning Board and Town Board when evaluating these requests, and maintenance of the intent and function of the new community and its relationship with the entire town shall be of primary importance.

Subdivision Review. Site plan review and approval under the provisions of this Section shall suffice for all Town Board and other town review of Subdivision Regulations and shall suffice to satisfy all preconditions of filing a subdivision plat in the form referred to in subsection (1) below, subject to the following conditions:

(1)

The petitioner shall plat the entire new community development as a subdivision; however, new communities being developed in stages may be platted and filed in the same stages. Information on the final plat shall be provided in accordance with established informational requirements applied generally in the town.

(2)

The petitioner shall prepare sets of subdivision plats suitable for filing with the offices of the Town and County Clerks, and the appropriate town officials shall provide such endorsements thereon or other evidences of such approval as may be necessary to effect such filing.

8-15-12.

Installation of Improvements. No building permits shall be issued for construction within a NCD until public street drainage and all utility improvements are installed or a performance bond is posted in accordance with established town procedures or a firm commitment to provide such improvements is certified to the town by any public agency willing to undertake such commitment.

8-15-13.

Other Ordinance Provisions. Except for site plan minor modification and those other provisions of the Zoning Ordinance specifically incorporated in this Section with the express purpose of giving them binding effect, no other procedural or substantive provisions of any other Section of the Zoning Ordinance shall apply to development in a NCD; nor shall any provision of any other town ordinance or other local law, rule or regulation which is inconsistent with or more stringent than any provisions or substantive requirements of this section be applicable to any aspect of development in a NCD to which such inconsistency or more stringent requirement applies.

8-15-14.

Town Board Approval of Development Plan Amendment. A development plan, after its approval by the Town Board upon application or on the Town Board's own initiative, may be amended (other than as provided in subsection 8-15-6 above) upon the request of the entity which was the principal owner, as defined in 8-15-1 above, of the new community site at the time of Town Board approval of said development plan or upon the request of a designee of said owner designated in writing by said owner for such purpose. Such request shall be filed with the Town Clerk, accompanied by such supporting material as may be reasonably necessary to enable the Planning Board or Town Board to review such request on the basis of the applicable criteria of this Section. The Town Board shall act to approve or disapprove such request within 45 days after such filing with the Town Clerk. A public hearing shall not be required in connection with any such amendment unless the amendment contemplates a change in the provisions of this Section or in the boundaries of a NCD or a change in a use classification of the development plan. In a case where such a hearing is required, such a hearing shall be held within 45 days following such filing, and the Town Board shall approve or disapprove the requested amendment within 20 days following the hearing. If a proposed boundary change will result in the inclusion of additional lands in the NCD, the minimum area requirements of § 5-2-3 shall not be applicable to such change. All Planning Board and Town Board determinations pursuant to this subsection shall be communicated to said principal owner or its designee, in writing, with a detailed statement of the basis therefor. At any time before the Town Board has approved a development plan pursuant to subsection 8-15-4 hereof, said principal owner may amend its application for such approval so as to include additional land owned or controlled by him and adjacent to the land owned by him at the time of submission of the original application; and prior to such approval, the Town Board may similarly amend a development plan proposed by the Town Board on its own initiative, in order to reflect the inclusion of such additional land owned or controlled by the entity which was the principal owner, as aforesaid, at the time of the original development plan proposal by the Town Board. Land so added shall be within the originally proposed NCD boundaries.

§ 8-16 Enforcement

8-16-1.

Penalties For Violation. Any person who violates any provision of this Ordinance or any regulation adopted hereunder is guilty of an offense punishable by a fine not exceeding $350 or imprisonment for a period not to exceed 6 months, or both; for conviction of a second offense both of which were committed within a period of five years, punishable by a fine not less than $350 nor more than $700 or imprisonment for a period not to exceed 6 months, or both; and upon conviction for a third or subsequent offense all of which were committed within a period of five years, punishable by a fine not less than $700 nor more than $1,000 or imprisonment for a period not to exceed six months, or both. Each week's continued violation shall constitute a separate violation.

8-16-2.

Administrative Procedures For Enforcement.

General Provisions. This ordinance shall be administered by the Building and Planning Departments, the Town Clerk and such other agencies as the Town Board shall direct and shall be enforced by the Commissioner of Building. Those departments and agencies shall be provided with the assistance of such persons as the Town Board may direct.

Construction and Use. Building permits authorize only the use, arrangement and construction which is in compliance with this Ordinance and other applicable laws. Use, arrangement or construction not in compliance with this Ordinance or other applicable laws shall be a violation of this Ordinance.

Records and Reports. The Zoning Enforcement Officer shall keep, or cause to be kept, a record indexed in regard to any decision or determination reached by the Zoning Enforcement Officer in connection with the interpretation or enforcement of this Ordinance.

[Amended 3-4-2019 by L.L. No. 6-2019]