Town of North East, NY Article VI Special Permit Uses

[Added 5-11-1989 by L.L. No. 5-1989; amended 6-10-1993 by L.L. No. 2-1993; 4-14-1994 by L.L. No. 1-1994]

§ 180-25 Approval by Zoning Board of Appeals.

A. All special permit uses cited in Article V of this chapter shall be subject to review and approval by the Zoning Board of Appeals ("Board of Appeals") in accordance with the standards and procedures set forth herein.

B. In all cases where this article requires such special use permit authorization by the Board of Appeals, a special use permit application shall be initially submitted to the Zoning Enforcement Officer and referred by the Zoning Enforcement Officer to the Board of Appeals for its consideration. No building permit or certificate of occupancy shall be issued by the Zoning Enforcement Officer and/or Code Enforcement Officer except upon authorization of, and in full conformity with, plans approved, and conditions imposed, by the Board of Appeals.

C. As provided by § 180-33, all uses requiring the issuance of a special use permit are additionally subject to site plan review and approval, as described in Article VII of this chapter.

§ 180-26 General standards.

In authorizing any special permit use, the Board of Appeals shall take into consideration the public health, safety and general welfare, the comfort and convenience of the public in general and that of the immediate neighborhood in particular. The Board of Appeals shall also take into strict account the standards established in Article V for certain uses, applicable supplementary regulations stated in Article VIII of this chapter and the following general objectives for any use requiring authorization by the Board of Appeals.

A. The location and size of the use, the nature and intensity of the operations involved, the size of the site in relation to the use and the location of the site with respect to existing and future streets and roads providing access shall be in harmony with the orderly development of the district in which the proposed use would be located.

B. The location, nature and height of the buildings, structures, equipment, walls and fences and the nature and intensity of intended operations will not discourage the appropriate development and use of adjacent land and buildings or impair the value thereof.

C. All proposed traffic accessways shall be adequate but not excessive in number; adequate in width, grade, alignment and visibility; sufficiently separated from street intersections and places of public assembly; and meet similar safety considerations.

D. Adequate provision for safe and accessible off-street parking and loading spaces shall be provided to prevent the parking in public streets of the vehicles of persons associated with or visiting the use.

E. All parking and service areas shall be screened at all seasons of the year from the view of adjacent residential lots and streets or roadways, and the general landscaping of the site shall be in character with that generally prevailing in the neighborhood. Such landscaping shall include the preservation of existing trees to the extent practicable.

F. All proposed buildings, structures, equipment and/or material shall be readily accessible for fire and police protection.

G. The character and appearance of the proposed use, buildings, structures and/or outdoor signs shall be in general harmony with the character and appearance of the surrounding neighborhood, shall not be more objectionable to nearby properties by reason of noise, fumes, vibration or flashing lights than would the operations of any permitted principal use and shall not adversely affect the general welfare of the inhabitants of the Town of North East.

H. The use shall meet the prescribed area and bulk requirements for the district in which located, or as further specified in the supplementary regulations, including such matters as minimum setback, maximum height, required off-street parking and sign regulations.

I. The level of services required to support the proposed activity or use is, or will be, available to meet the needs of the proposed activity or use. This consideration shall include the suitability of water supply and sanitary sewage facilities, whether private or publicly provided, to accommodate the intended use.

J. The use shall be carried out in a manner compatible with its environmental setting and with due consideration of the protection of natural resources.

K. The Board of Appeals may impose additional conditions and restrictions upon the special permit as may be reasonably necessary to assure continual conformance with all applicable standards and requirements, including reasonable assurance that these conditions and restrictions can be responsibly monitored and enforced.

L. The Board of Appeals may, when reasonable, waive any preestablished requirement for special permit approval contained in this article, or in Articles V or VIII of this chapter, if the Board finds that any such requirement is found not to be requisite in the interest of the public health, safety or general welfare or inappropriate to a particular special use permit.

§ 180-27 Special use permit application procedure.

The Board of Appeals shall review and act on all special permit uses in accordance with the procedure specified herein:

A. Application and fee. All applications made to the Board of Appeals shall be in writing, on forms and in accordance with the schedule prescribed by the Board, and, in order to be considered complete, shall, except as may be waived by the Board on a case-by-case basis due to the minor nature of the specific request, include the following:

(1) A preliminary site plan which demonstrates the overall site layout and building locations, parking areas, access and egress locations, setbacks and buffer areas, lighting, landscaping, signage and the location and extent of existing development on adjacent parcels.

(2) Preliminary building plans and elevations illustrating proposed building construction and alteration, including an indication of exterior materials, textures and colors.

(3) Payment of the applicable fee in accordance with the fee schedule established and annually reviewed by the Town Board.

(4) Either a short or full environmental assessment form as required by the Board of Appeals pursuant to SEQRA, Article 8 of the Environmental Conservation Law, and 6 NYCRR 617.

(5) Any other information deemed helpful by the applicant or necessary by the Board of Appeals to explain the nature of the proposed use and its consistency with the standards established by this article for special permit uses.

B. Public notice and hearing. The Board of Appeals shall within 62 calendar days of the receipt of the complete application conduct a public hearing on any such special use permit application. The Board of Appeals shall provide a copy of the notice of said hearing to the applicant, and at such hearing he shall appear in person or by agent. The Board shall additionally provide notice as follows:

(1) By publishing at least five calendar days prior to the date thereof a legal notice in the official newspaper of the Town.

(2) By requiring the Secretary of the Board of Appeals to provide notice of the public hearing to the owners of all property abutting that held by the applicant and all other owners within 200 feet of the land involved in such application. Notice shall be mailed at least 10 calendar days prior to the hearing, with compliance with the notification procedure certified to by the Secretary or other designated Town employee. The Town shall charge the applicant either a flat rate or a stated amount per notice for satisfying this requirement.

(a) The names and addresses of owners notified shall be taken as such appear on the last completed tax roll of the Town.

(b) Provided that there has been substantial compliance with these provisions, the failure to give notice to the abutting owners in exact conformance herewith shall not be deemed to invalidate an action taken by the Board of Appeals in connection with granting or denying a special permit application.

(3) If the land involved in the application lies within 500 feet of the boundary of any other municipality, the Secretary of the Board of Appeals shall also mail, at least five calendar days prior to the public hearing, to the municipal Clerk of such other municipality or municipalities a copy of the official notice of such public hearing.

C. Consultant review. In its review of an application for special use permit, the Board of Appeals may consult with the Town Zoning Enforcement Officer and/or Code Enforcement Officer, the Superintendent of Highways, the Conservation Advisory Council, the Dutchess County Health Department, other local and county officials and its designated private planning and engineering consultants, in addition to appropriate representatives of state agencies including but not limited to the Department of Transportation, the Health Department and the Department of Environmental Conservation.

D. Required referral to Dutchess County Department of Planning.

(1) A full statement of any special use permit application that meets the referral requirements of §§ 239-l and 239-m of the General Municipal Law shall also be referred prior to the public hearing to the Dutchess County Department of Planning for its review.

(2) No action shall be taken by the Board of Appeals on such application until an advisory recommendation has been received from said County Planning Department or 30 calendar days have elapsed since the Department received such full statement. In the event that the Dutchess County Department of Planning recommends disapproval of the proposal, or recommends modification thereof, the Board shall not act contrary to such disapproval or recommendation except by a vote of a majority plus one of all the members after the adoption of a resolution fully setting forth the reasons for such contrary action. Within seven calendar days after such final action, the Board shall file a report of the final action it has taken with the County Department of Planning.

E. Referral to Town Planning Board. Upon receipt of a complete application for a special permit, the Board of Appeals shall refer such application to the Planning Board for an advisory recommendation. No action shall be taken by the Board of Appeals until an advisory recommendation has been received from said Planning Board or until 30 calendar days have elapsed since the date of referral.

F. Decisions. Every decision of the Board of Appeals with respect to a special use permit application shall be made by resolution within 62 calendar days of the close of the public hearing, which resolution shall clearly state the decision, including findings, and any conditions attached thereto. The time within which the Board must render its decision may be extended by mutual consent of the applicant and the Board. Each such decision shall be filed in the office of the Town Clerk within five business days after such decision is rendered. Copies shall also be sent to the applicant and to the Town's Zoning Enforcement Officer and Code Enforcement Officer.

§ 180-28 Reimbursable costs. [1]

Reimbursable costs incurred by the Board of Appeals for private consultation fees or other extraordinary expense in connection with the review of a special use permit application shall be charged to the applicant as set forth in Chapter 92, Article I, Reimbursement of Professional Fees. Such reimbursable costs shall be in addition to the required application fee. Maximum amounts for such reimbursable costs by project type and size shall be in accordance with the fee schedule established and annually reviewed by the Town Board. Said fee schedule shall include the requirement that an escrow account be established upon the Board of Appeal's receipt of the application to cover the anticipated costs of such consultant review and other expenses.

[1] Editor's Note: Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. I).

§ 180-29 Effect of special use permit approval.

A. In addition to compliance with all other applicable provisions of this chapter, and all other local, county and state laws, rules and regulations, no building permit shall be issued for any structure regulated by this article until such special use permit has received Board of Appeals approval and a copy of a resolution to that effect has been presented to the Code Enforcement Officer.

B. No certificate of occupancy shall be issued for any structure or use of land covered by this article until the structure is completed or the land developed in strict accordance with the Board of Appeals' resolution of special use permit approval and other applicable requirements of this chapter.

C. Any use for which a special use permit has been granted shall be deemed a conforming use in the zoning district in which it is located, provided that such special use permit shall be deemed to affect only the lot or portion thereof for which such special use permit has been granted.

D. The Board of Appeals may require in its resolution of approval that a special use permit be renewed periodically. Such renewal may be withheld only after public hearing and upon specific determination by the Board of Appeals that such conditions as may have been prescribed in conjunction with the issuance of the original permit have not been, or are no longer being, complied with. In such cases, a period of 60 calendar days shall be granted for full compliance by the applicant prior to consideration of the revocation of the special use permit.

§ 180-30 Expiration.

A special use permit shall be deemed to authorize only the particular use or uses expressly specified in the permit and shall expire if the special use permit activity is not commenced and diligently pursued within one calendar year of the date of issuance of the special use permit. Upon prior written request to the Board of Appeals, including a statement of justification for the requested time extension, the time period for initiation of the special permit use may be extended once for a maximum period of one calendar year from its otherwise specified termination date.

§ 180-31 Revocation.

In all instances, including those cited above, a special use permit may be revoked by the Board of Appeals after public hearing, if it is found and determined that there has been a substantial failure to comply with any of the terms, conditions limitations and/or requirements imposed by said special use permit.

§ 180-32 Relief from decisions.

Any person or persons jointly or severally aggrieved by any decision of the Board of Appeals on a special use permit application may apply to the Supreme Court of the State of New York for relief through a proceeding under Article 78 of the Civil Practice Law and Rules of the State of New York. Such proceedings shall be instituted within 30 days after the filing of the decision in the office of the Town Clerk.