§ 70-225. Powers and duties., Article XXIV. Board of Zoning and Appeals, Chapter 70. Zoning, Code of Ordinances, North Hempstead

The Board of Zoning and Appeals, in addition to the powers and duties set forth in the Town Law and as heretofore set forth in this chapter, may, in a specific case after public notice and hearing and subject to appropriate conditions and safeguards, determine and vary the application of this chapter and authorize the issuance of permits in harmony with the general purpose and intent as hereinafter provided.

Conditional and special uses.

(1)

In the consideration and determination of applications for conditional uses or special permits, the Board of Zoning and Appeals shall consider the following general standards as applied to the specific application:

(a)

The purposes of zoning as set forth in the Town Law of the State of New York and uses permitted in the district in which the property is located.

(b)

Whether the proposed use is of such character, size, location, design and site layout as to be appropriate to and in harmony with the surrounding properties.

(c)

Whether the proposed use will provide a desirable service, facility or convenience to the area or otherwise contribute to the proper growth and development of the community and to its general welfare.

(d)

Whether the proposed use will be hazardous, conflicting or incongruous to the immediate neighborhood by reason of excessive traffic, assembly of persons or vehicles, proximity to travel routes or congregations of children or pedestrians.

(e)

Whether the proposed use will be of such nature as to be objectionable to nearby residential dwellings by reason of noise, lights, vibration or other factors of impact.

(f)

Whether the proposed use will be a harmonious use in the district in which it is to be situated and not hinder or discourage the appropriate use and development of adjacent uses or impair the value thereof.

(g)

In addition to the foregoing, the location and size of a proposed use in a business or industrial district, the nature and intensity of the operations proposed, the site layout and its relation to access streets shall be considered by the board having jurisdiction of the application to determine whether the vehicular traffic resulting from such use will be more hazardous than the normal traffic of the district, taking into account such factors as street intersection, traffic flow, sight distances and pedestrian traffic.

(2)

If the Board of Zoning and Appeals shall determine that the conditional uses provided in this chapter or a proposed special use will conform to the general character of the neighborhood to which the proposed use will apply and that the public health, morals, safety and general welfare of such neighborhood will be secure by the granting of such use, subject to the safeguards imposed by the Board, then the Board of Zoning and Appeals shall authorize the issuance of a permit pursuant to § 70-225 of this article. Such permits may be granted for a temporary period or permanently, as determined by the Board, and, if granted for a temporary period, application for extension of same will be subject to a public hearing as required in the original application.

(3)

Before an application for a conditional or special use may be heard by the Board of Zoning and Appeals, a complete and accurate list of the names and addresses of the owners of all the lands within a radius of 300 feet of the property affected by such application as appears on the latest completed assessment roll of the County of Nassau shall be submitted simultaneously with the application. The applicant shall send, by first-class mail and by registered or certified mail, to each owner shown on said list, not less than 10 nor more than 20 days before the date set for a hearing upon this application, a notice addressed to such owners generally, signed by the applicant, identifying the property affected thereby and setting forth the use requested and the date, hour and place fixed by the Board of Zoning and Appeals for the hearing thereon. Before such case may be heard by the Board of Zoning and Appeals, the applicant must file with the Clerk of the Board, not later than five days prior to the hearing date, an affidavit of the mailing of such notices as herein provided, said affidavit to be made on forms to be provided by the Board of Zoning and Appeals. This provision shall likewise apply to any application for the extension of a temporary conditional or special use.

[Amended 1-29-2019 by L.L. No. 3-2019]

(4)

If the Board of Zoning and Appeals finds that in an application the conditional use provided in this chapter or special use proposed and requested in said application will not conform to the general character of the neighborhood to which the proposed use will apply and that the public health, morals, safety and general welfare of such neighborhood will not be secured by granting such conditional use, then the Board of Zoning and Appeals shall deny such application, anything in this chapter to the contrary notwithstanding.

(5)

If, upon an application for extension of a conditional or special use, the Board finds that the applicant has violated the conditions imposed in the granting of same or if the Board finds that because of a change in the general character of the neighborhood the public health, safety, morals and general welfare will be adversely affected by the extension of such conditional or special use, then the Board of Zoning and Appeals may deny an application for extension of such conditional or special use, anything in this chapter to the contrary notwithstanding.

(6)

Mother-daughter residences.

(a)

Upon an application for a mother-daughter residence, as defined in § 70-231 of this chapter, § 70-225B(3) shall not apply; however, the applicant shall file with the Board the written consents received from, or proof of written notice given to, all owners of property adjoining the property affected by the application.

(b)

Any mother-daughter residence legally in existence with a currently valid permit on April 1, 1997, shall be considered to be a legal nonconforming use with respect to any structural improvement in existence on April 1, 1997. Any subsequent structural improvement shall conform to the conditions of a mother-daughter residence, as defined in § 70-231.

(c)

The fee owner of any residence which ceases to be a mother-daughter residence under the conditions listed in § 70-231 shall remove all cooking facilities from the apartment within 90 days of the change. As a condition of granting any application for a conditional use of a mother-daughter residence, the Board of Zoning and Appeals shall require the recording of a covenant to remove cooking facilities as aforesaid.

(7)

Changes to uses requiring conditional use permit; noncompliance.

[Amended 3-20-2018 by L.L. No. 2-2018]

(a)

Any restaurant or retail food use must apply to the Board of Zoning and Appeals if any of the following occurs:

[1]

An increase in the size of an approved kitchen by 20% of floor area of said kitchen, or 250 square feet, whichever is less, inclusive of prep areas, is proposed.

[2]

The addition or removal of counter/kiosk service for the placement of a food order.

(b)

Failure to comply with the conditions imposed in the decision of the Board of Zoning and Appeals may result in a revocation of the conditional use permit. In the event that the conditional use permit is revoked, a new conditional use permit application must be made and the appropriate fees paid.

Authorize the issuance of temporary and conditional permits for a period not to exceed two years for structures, buildings and uses in undeveloped sections of the Town, as determined by the Board, in contravention of the requirements of this chapter.

Determine and establish the true location of use district boundaries in any disputed case.

Permit a use authorized on a portion of a lot in a lower restricted district to extend to the entire lot, but not more than 50 feet beyond the boundary line of the higher restricted district in a case where a use district boundary line divides a lot in a single ownership at the effective date of this chapter.

Determine whether or not any trade, industry, purpose or use otherwise permitted by this chapter would violate Article XXII, § 70-203A, and if so, to prohibit such trade, industry or use.

Vary the application of the provisions of this chapter and establish appropriate requirements for irregular lots or lots less than the required area in any district existing at the effective date of this chapter.

Vary the application of the provisions of this chapter and modify the requirements thereof in cases of exceptional topography under such conditions as will safeguard the neighborhood.

Vary any provision of this chapter in cases of practical difficulty or unnecessary hardship, provided public health, safety and general welfare are secured.

In an appeal under which the Board is asked to vary those provisions of this chapter related to the dimension and/or number of parking spaces (e.g., §§ 70-103 and 70-231), the Board shall decide such appeal by applying the "area variance" test set forth in Town Law § 267-b(3).

In addition to the power and duties of the Board as hereinabove set forth, the Board of Zoning and Appeals shall also act in an advisory capacity to the Town Board in reference to changes of zone, and shall study the application of this chapter, recommending to the Town Board from time to time such changes in the chapter and in the boundaries of the various districts as it shall deem advisable to further promote the health, safety, morals and/or general welfare of the community.

The concurring vote of a majority of the members of the Board shall be necessary for a decision.

Wherever in this chapter reference is made to the Planning Board or Board of Appeals, said reference shall for the purpose of the ordinance be deemed to refer to the Board of Zoning and Appeals as established by the Town Board under the date of May 1, 1952.

Review a decision of the Building Commissioner to deny a request for a tree removal permit. In reviewing such decision, the Board of Zoning and Appeals shall be guided by the criteria established in § 2-9T(4).

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

(1)

With respect to members of the Board of Zoning and Appeals, in order to be eligible for reappointment to such board, such members shall have completed the training required by the Town pursuant to this subsection.

(2)

Board members shall provide adequate proof of such training to the Commissioner of Planning upon completion of same.

(3)

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

(4)

No decision of the Board of Zoning and Appeals or of the Town Board shall be voided or declared invalid because of a failure to comply with this subsection.

(5)

The training requirements imposed by this subsection shall become effective for the calendar year 2008, as the Town Board deems it in the best interests of the Town to impose such requirement at such time.