A. There shall be a Board of Appeals consisting of seven members appointed by the Town Board.
B. Such Board of Appeals shall, consistent with the Town Law, determine its own rules and procedure governing, among other things, the manner of bringing on appeals and applications for hearing, the notice to be given of its hearings in addition to statutory requirements, and the date and time of hearings and decisions.
C. The Board of Appeals shall investigate and report upon all matters referred to it by the Town Board.
D. The Board of Appeals shall have the powers granted by the Town Law and the following powers:
**Webmasters Note: The previous sections, 259.A through 267.D., have been amended as per Supplement No. 42.
(1) Variance powers (matters of appeal to the Board of Appeals). Where there are practical difficulties or unnecessary hardships in the way of carrying out the strict letter of these regulations, the Board of Appeals shall have power to vary or modify the application of such regulations so that the spirit of this ordinance shall be observed, public safety and welfare secured and substantial justice done.
(a) Where any subdivision or lot reapportionment or site plan is the subject of an application for a variance, the Board of Zoning Appeals shall review the application for the purpose of considering the preservation of existing trees on the site. The application shall contain a specific plan, filed with the Department of Buildings, containing a tree legend which will identify by number, species and caliper (four inches or more) those trees to be preserved, removed and/or replaced. In reviewing the application, the Board of Zoning Appeals shall consider the following criteria: [Effective 10-18-1987]
[1] The condition of the trees with respect to disease and danger of falling, proximity to existing or proposed structures and interference with utility services.
[2] The necessity of the removal or alteration of the tree in question.
[3] Compliance with regulations of the New York State Department of Environmental Conservation and the Town of Hempstead Department of Conservation and Waterways if the proposed tree removal or alteration site is adjacent to freshwater wetland boundaries.
[4] The character established at the proposed site of removal or alteration with respect to existing tree density.
[5] The impact of any removal or alteration upon existing screening of any road or highway bordering the property.
[6] The recommendations of the Department of Buildings, which shall review the site plan for tree preservation with a landscape architect.
(2) Special powers and rules (matters of original jurisdiction and by application to the Board of Appeals). Whenever a use, or the location thereof, is permitted only if the Board of Appeals shall approve thereof, the Board of Appeals may, in a specific case and after notice and public hearing, authorize such permissive use and its location within the district in which this ordinance specifies the permissive use may be located, subject, however to the following:
(a) Before such approval shall be given, the Board of Appeals shall determine that:
[1] The use will not prevent the orderly and reasonable use of adjacent properties or of properties in adjacent use districts;
[2] The use will not prevent the orderly and reasonable use of permitted or legally established uses in the district wherein the proposed use is to be located or of permitted or legally established uses in adjacent use districts;
[3] The safety, the health, the welfare, the comfort, the convenience or the order of the Town will not be adversely affected by the proposed use and its location; and
[4] The use will be in harmony with and promote the general purposes and intent of this ordinance.
(b) In making such determination, the Board of Appeals shall also give consideration, among other things, to:
[1] The character of the existing and probable development of uses in the district, and the peculiar suitability of such district for the location of any of such permissive uses.
[2] The conservation of property values and the encouragement of the most appropriate uses of land.
[3] The effect that the location of the proposed use may have upon the creation of undue increase of vehicular traffic congestion on public streets, highways or waterways.
[4] The availability of adequate and proper public or private facilities for the treatment, removal or discharge of sewage, refuse or effluent (whether liquid, solid, gaseous or otherwise) that may be caused or created by or as a result of the use.
[5] Whether the use, or materials incidental thereto or produced, may give off obnoxious gases, odors, smoke or soot.
[6] Whether the use will cause disturbing emission of electrical discharges, dust, light, vibration or noise.
[7] Whether the operations in pursuance of the use will cause undue interference with the orderly enjoyment by the public of parking or of recreational facilities, if existing, or if proposed by the Town or by other competent governmental agency.
[8] The necessity for bituminous-surfaced space for purposes of off-street parking of vehicles incidental to the use, and whether such space is reasonably adequate and appropriate and can be furnished by the owner of the plot sought to be used within or adjacent to the plot wherein the use shall be had.
[9] Whether a hazard to life, limb or property because fire, flood, erosion or panic may be created by reason of or as a result of the use or by the structures to be used therefor or by the inaccessibility of the property or structures thereon for the convenient entry and operation of fire and other emergency apparatus or by the undue concentration or assemblage of persons upon such plot.
[10] Whether the use or the structures to be used therefor will cause an overcrowding of land or undue concentration of population.
[11] Whether the plot area is sufficient, appropriate and adequate for the use and the reasonable anticipated operation and expansion thereof.
[12] The physical characteristics and topography of the land.
[13] Whether the use to be operated is unreasonably near to a church, school, theater, recreational area or other place of public assembly.
[14] In applications for special exceptions for dish-type satellite signal receiving antennas, the Board of Zoning Appeals, in addition to the foregoing, shall also give consideration to the following [Effective 12-16-1983]:
[a] Whether a hazard to life, limb or property because of snow, wind or storm may be created by reason of or as a result of the installation of such antenna.
[b] Whether a hazard to life, limb or property because of structural impairment, disassembly or collapse may be created by reason of or as a result of the installation of such antenna.
[c] Whether solar access may be denied to an abutting property by reason of or as a result of the installation of such antenna.
[15] In applications seeking permissive uses, the Board of Zoning Appeals shall give consideration to the preservation of existing trees on the site. An application for a permissive use shall contain a specific plan, filed with the Department of Buildings, containing a tree legend which will identify by number, species and caliper (four inches or more), those trees to be preserved, removed and/or replaced. In reviewing the application, the Board of Zoning Appeals shall consider the following criteria; [Effective 10-18-1987]
[a] The condition of the tree with respect to disease and danger of falling, proximity to existing or proposed structures and interference with utility services.
[b] The necessity of the removal or alteration of the tree in question.
[c] Compliance with regulations of the New York State Department of Environmental Conservation and the Town of Hempstead Department of Conservation and Waterways if the proposed tree removal or alteration site is adjacent to freshwater wetland boundaries.
[d] The character established at the proposed site of removal or alteration with respect to existing tree density.
[e] The impact of any removal or alteration upon existing screening of any road or highway bordering the property.
[f] The recommendations of the Department of Buildings, which shall review the site plan for tree preservation with a landscape architect.
(c) Each application under this Subsection B shall be accompanied by a plot plan prepared by a registered architect, a licensed professional engineer or licensed surveyor, showing the location of each structure proposed to be erected on the plot which is the subject of said application and showing the dimensions of each such structure. The granting by the Board of Appeals of any such application shall be limited to structures of the dimensions shown on said plan and located as shown thereon unless the determination of said Board making such grant shall expressly provide otherwise. In making such determination where the application is for a mother-daughter permissive use, the Board of Appeals shall also give consideration, in addition to the foregoing, to:
[1] The criteria set forth in § 85-3 of Chapter 85 of the Code of the Town of Hempstead. [Effective 12-24-1973]
[2] Recommendation of the Board of Architectural Review made thereunder. [Effective 12-24-1973]
(d) As conditions to the granting of a mother-daughter application, the following shall be required by the Board of Zoning Appeals:
[1] That a restrictive covenant shall be submitted to the Board of Zoning Appeals and filed with the Nassau County Clerk's office at the applicant's expense, and which shall declare the limitations on the use of the mother-daughter residence in accordance with the determination of the Board of Zoning Appeals.
[2] That the Town of Hempstead shall have the right to inspect the premises during reasonable hours to ascertain whether the use is in compliance with the determination of the Board of Zoning Appeals. The applicant shall execute the consent for such inspection to be filed with the Town Clerk.
[3] Special exception grant for mother-daughter shall be terminated upon the happenings of the following events:
[a] Sale or lease of the mother-daughter premises.
[b] Any change of occupancy of the mother-daughter premises from that occupancy approved by the subject exception grant. [Effective 12-24-1973]
[4] As a part of the application, the resident owner/applicant for a mother-daughter residence shall provide to the Board of Appeals a photo ID acceptable to the Board of each person who the resident owner/applicant proposes to be entitled, by reason of familial relationship, to reside (with his or her family) at a second separate living unit within the dwelling. The resident owner/applicant shall disclose to the Board his or her familial relationship to each such person, and shall provide such proof of identity and familial relationship as the Board may demand. Any person whose necessary information as required above has not been submitted to, and approved by, the Board of Appeals shall not be a person whose residence at the premises constitutes qualification for mother-daughter residence status, regardless of familial relationship to the resident owner/applicant, pending further application to, and approval by, the Board of Appeals, if any. If at any point no fee resident owner and/or approved qualifying relative shall be a permanent resident of his or her respective dwelling unit, the mother daughter residence status shall immediately terminate, without need of further action by the Board of Appeals or any other instrumentality of the Town. In such case, the occupancy of the dwelling by a second family and maintenance of a second kitchen shall both become immediate and continuous nonpermitted uses in the district where they are situated, unless and until they are abated. The term "permanent resident" shall mean a person who actually resides at the premises in excess of 186 days per year; excepting active federal military duty. [Effective 4-21-2009]
(3) The Board of Appeals shall, in authorizing such permissive uses, impose such conditions and safeguards as it may deem appropriate, necessary or desirable to preserve and protect the spirit and objectives of this ordinance.
The Board of Appeals shall make rules as to the manner of filing appeals and applications for variances or for special exceptions.
After filing with the Board of Appeals, and payment of the requisite fees, of an appeal for a variance or of an application for special use, the Board of Appeals shall fix a time and place for a public hearing thereon and shall give notice thereof by publishing a notice thereof in accordance with the Town Law.
[Effective 7-10-2011]
In any case filed with the Board of Appeals not involving single-family or two-family detached residential use, and in addition to all other applicable requirements, the following regulations shall apply to public hearings thereon:
A. Notice of the hearing shall be made by the applicant or the applicant's authorized representative, utilizing a form approved by the Board of Appeals.
B. The notice shall be mailed to owners of all property directly abutting the subject premises, by certified mail, return receipt requested, to their last known address. Additionally, the notice shall be mailed by first-class mail to owners of all other properties within a three-hundred-foot radius of the subject premises. All mailings shall be made at least 21 days and not more than 28 days prior to the date of hearing.
C. Additionally, notice shall be provided by conspicuous posting of a sign or signs. A sign shall be located in each front yard setback of the subject premises or, if there is no such setback, then on the front wall of the building. The sign shall be in place not less than 21 days prior to the scheduled hearing date and shall continue in place until after conclusion of the hearing. The sign shall be subject to physical standards to be determined by the Board of Appeals, and those standards shall include the following minimum requirements:
(1) The visible face of the sign shall be not less than 24 square feet in area;
(2) The sign shall provide the words "NOTICE OF PUBLIC HEARING" and the date, place and time of the hearing in letters that are black and at least six inches high;
(3) The sign shall set forth the type of relief requested before the Board of Appeals, in a manner approved by the Board; and
(4) The background color of the face of the sign shall be either bright orange or bright yellow.
D. Proof of compliance with all the above shall be provided by submission of an affidavit acceptable to the Board of Appeals, and failure to abide by these rules may be grounds for adjournment of the public hearing by the Board of Appeals, pending compliance herewith.
[Effective 4-24-1972]
Every variance, or application for a special exception or special use, granted by the Board of Zoning Appeals in pursuance of the provisions of this ordinance shall become null, void and of no further force and effect, unless:
A. A permit shall have been issued pursuant thereto within four months after the filing with the Town Clerk of the decision of the Board of Zoning Appeals;
B. The use so granted shall have been actually commenced upon the premises, or the erection and construction of the principal building or structure, for the construction or use of which a variance or special exception or special use shall have been granted by the Board of Zoning Appeals, shall have been actually commenced within four months after issuance of permit; provided, however, that excavation for a building foundation shall not be deemed a commencement of the erection of such building or structure within the meaning of this section; and
C. The erection and construction of any such principal building or structure shall have been completed and a certificate of occupancy shall have been issued within two years after the date of the issuance of the permit therefor.
[Effective 4-24-1972; 5-5-1985]
The Board of Zoning Appeals may, for good cause shown, grant a longer period of time for the issuance of a permit, commencement of construction and completion of a building or structure in pursuance thereof, than that herein provided either upon the granting of the variance or application for special uses or, thereafter, upon application made to it for such extension; provided, however, that such application shall be made before or within one year after the time for the issuance of a permit or commencement of the building or structure has expired. In determining whether good cause existed for such extension, the Board of Zoning Appeals shall consider, among other things, the nature and extent of the construction and the complexity thereof, practical difficulty tending to delay construction, availability of utilities, strikes, scarcity or labor or materials, war or acts of God.
The Board of Appeals may, after public notice and hearing, permit the following uses in the districts designated:
A. In an A Residence District, AA Residence District, B Residence District or Levittown Planned Residence District (LPRD): [Effective 12-24-1973; 10-31-1987]
(1) Philanthropic uses
(2) Clubs.
(3) Fraternity houses
(4) Lodges.
(5) Hospitals.
(6) Sanatoriums
(7) Telephone exchanges.
(8) Golf courses.
(9) Public utility buildings and structures.
(10) Mother-daughter residences. Application requirements to the Board of Zoning Appeals set forth in §§ 257 and 267D(2)(c) of the Building Zone Ordinance shall not be applicable to mother-daughter residences.
B. In a C Residence District:
(1) Philanthropic uses
(2) Clubs.
(3) Fraternity houses
(4) Lodges.
(5) Hospitals.
(6) Sanatoriums.
(7) Telephone exchanges.
(8) Golf courses
(9) Hotels
(10) Lodging houses
(11) Boardinghouses.
(12) Public utility buildings and structures.
(13) Mother-daughter residences. Application requirements to the Board of Zoning Appeals set forth in §§ 257 and 267D(2)(c) of the Building Zone Ordinance shall not be applicable to mother-daughter residences. [Effective 12-24-1973]
C. In a Business District:
(1) Any permitted use whose vehicular access is limited to one or more two-lane roadways, and exceeds the following thresholds: [Effective 4-27-2004; 8-30-2007]
(a) Thresholds.
[1] Single-family and two-family detached dwelling: 100 dwelling units.
[2] Club, fraternity house or lodge: 25 employees.
[3] Public school, parochial school, private school for instruction of elementary grades, academic grades, or both, chartered by the Board of Regents of the State of New York; college; university: 8,400 square feet.
[4] Religious use: 8,500 square feet.
[5] Philanthropic use, excluding a correctional institution: 15,000 square feet.
[6] Hospital, sanatorium or a dormitory of an educational institution: 44,500 square feet.
[8] Agriculture, greenhouse and nursery: 10,000 square feet.
[9] (Reserved)
[10] (Reserved)
[11] Office: 65,000 square feet; bank: 2,400 square feet.
[12] Stores and shopping centers.
[a] Shopping center: 20,150 square feet.
[b] Supermarket: 9,300 square feet.
[c] Convenience market: 1,300 square feet.
[d] Video rental store: 3,200 square feet.
[e] Pharmacy/drug store: 9,400 square feet.
[f] All other stores for the sale, at retail, of articles to be used or consumed off the premises: 14,200 square feet.
[13] Restaurant other than a diner, lunch wagon, drive-in restaurant, drive-in luncheonette, drive-in counter or drive-in refreshment stand: 5,000 square feet; fast-food restaurants: 1,850 square feet
[14] (Reserved)
[15] Carpenter, hand cabinetmaking, furniture repair or upholstery shop, electrical shop, hand metalworking, blacksmith, tinsmith, new and unused plumbing, gas, steam or hot-water fitting shop: 109,000 square feet.
[16] Hand laundry, custom tailoring, hand dressmaking, shoemaking and repairing: 14,200 square feet.
[17] Sale or repair of jewelry, watches, clocks or optical goods, musical, professional or scientific instruments: 16,100 square feet.
(b) For the use of this subsection only, the above terms are defined as follows:
CONVENIENCE MARKET - A market that sells convenience foods, newspapers, magazines and beer, which does not sell gasoline.
FAST-FOOD RESTAURANT - A restaurant other than a diner, lunch wagon, drive-in restaurant, drive-in luncheonette, drive-in counter or drive-in refreshment stand, which sells prepared food over a counter and is characterized by a large carry out clientele, long hours of service, and high turnover rates for eat-in customers.
PHARMACY/DRUGSTORE - A retail facility that sells prescription and nonprescription medication. These facilities may also sell cosmetics, toiletries, medications, stationery, personal care products, limited food products, and general merchandise.
SHOPPING CENTER - An integrated group of establishments, comprised usually but not exclusively of retail and personal service establishments, that is planned, developed, owned and managed as a unit.
SUPERMARKET - A freestanding or attached retail store which sells an assortment of food, food preparation materials and household cleaning items.
VIDEO RENTAL STORE - A business specializing in the rental of home movies and video games.
(2) (Reserved)
(3) (Reserved)
(4) Storage warehouses; express depots or yards; merchandise receiving or distributing depots or yards; storage of motor vehicles, boats, contractors' equipment, motor trucks or buses when not accessory to premises used primarily for the sale thereof; yards for storage or sale of coal or building materials.
(5) Newspaper or job printing or bookbinding.
(6) Places of amusement or public assembly. However, the grant of any cabaret use by the Board of Zoning Appeals shall be limited to the specific cabaret use applied for and approved by the Board of Zoning Appeals and no other cabaret use. This section shall apply to any cabaret use hereafter or previously granted by the Board of Zoning Appeals. For purposes of this section, the term "cabaret" shall be the same as defined in Chapter 96 of the Code of the Town of Hempstead. [Effective 3-31-1997]
(7) Stores or salesrooms or open lots for the display or sale of used automobiles, whether or not maintained in connection with the sale or display of new automobiles.
(8) Storage, sale or distribution of ice, coal, new or used lumber, used plumbing material or fittings, used household equipment or materials, used automotive parts, equipment or supplies, and live poultry.
(9) Bowling alleys.
(10) Stores or shops for the sale of food, refreshments or other edibles or drink, which provide or make available any facility (including but not limited to parking or standing space on the premises for vehicles) for or permits the consumption of such food, refreshments or other edibles or drink on the premises outside the building or structure occupied by such store.
(11) Hotels and motels. [Effective 3-9-2004]
(12) Machine-operated laundry or dry cleaning establishments, whether the machinery is operated or controlled by personnel of the establishment or by customers thereof.
(13) Day camps.
(14) Diners, lunch wagons, drive-in restaurants, drive-in luncheonettes; drive-in lunch counters or drive-in refreshment stands.
(15) Any use of the same general character as any of the uses expressly permitted in a Business District by this ordinance.
(16) Accessory uses on the same lot with and customarily incidental to any use expressly permitted in a Business District by this ordinance or permitted pursuant to this section.
D. In a Light Manufacturing District:
(1) Places of amusement or public assembly. However, the grant of any cabaret use by the Board of Zoning Appeals shall be limited to the specific cabaret use applied for and approved by the Board of Zoning Appeals and no other cabaret use. This section shall apply to any cabaret use hereafter or previously granted by the Board of Zoning Appeals. For purposes of this section, the term "cabaret" shall be the same as defined in Chapter 96 of the Code of the Town of Hempstead. [Effective 3-31-1997]
(2) Hotels and motels. [Effective 3-17-1983; 3-9-2004]
(3) A floor area ratio in excess of 0.4 for any permitted use. [Effective 8-5-1989]
(4) Any facility for the processing or recycling of putrescible or nonputrescible waste materials, located on property any part of which is within 500 feet from any premises zoned Residence A or Residence B and actually improved with a single-family dwelling. [Effective 5-8-2006]
E. In an Industrial District:
(1) Hotels and motels. [Effective 3-17-1983; 3-9-2004]
(2) Places of amusement or public assembly. However, the grant of any cabaret use by the Board of Zoning Appeals shall be limited to the specific cabaret use applied for and approved by the Board of Zoning Appeals and no other cabaret use. This section shall apply to any cabaret use hereafter or previously granted by the Board of Zoning Appeals. For purposes of this section, the term "cabaret" shall be the same as defined in Chapter 96 of the Code of the Town of Hempstead. [Effective 3-31-1997]
(3) A floor area ratio in excess of 0.4 for any permitted use. [Effective 8-5-1989]
(4) Any facility for the processing or recycling of putrescible or nonputrescible waste materials, located on property any part of which is within 500 feet from any premises zoned Residence A or Residence B and actually improved with a single-family dwelling. [Effective 5-8-2006]
F. In any district:
(1) Parking fields, either public or private, for the parking of passenger vehicles only, but not for display or sale of automobiles.
(2) Amusement-ride facilities on a temporary basis not to exceed 10 days' duration, except when amusement-ride facilities are conducted on the grounds and parking area immediately adjacent to the property of the Nassau County Veterans Memorial Coliseum, in which event such amusement-ride facilities shall be permitted on a temporary basis not to exceed 17 days' duration [Effective 5-8-1977; 4-24-1992]
(3) Parking of automobiles in the minimum area required for the front yard setback. [Effective 9-12-1995]
(4) Religious uses; private educational uses. [Effective 8-30-2007]
G. In the Edu-Cultural (E), Mitchel Field Hotel (MFH), Mitchel Field Office (MFO), (MFO-I) and (MFO-II), Business (X), Light Manufacturing (LM), Industrial (Y), Marine Commercial (MB), Marine Recreation (MC), Marine Resort (MD) and Urban Renewal Highway Commercial (URD-HC) and Planned Unit Development (PUD) Use Districts: [Effective 12-16-1983; 5-17-1993]
(1) Installation of dish-type satellite signal-receiving antennas.
H. In a Marine Recreation District: [Effective 6-26-1987]
(1) Places of amusement or public assembly, but only as an accessory use to an expressly permitted use pursuant to § 232.3B. However, the grant of any cabaret use by the Board of Zoning Appeals shall be limited to the specific cabaret use applied for and approved by the Board of Zoning Appeals and no other cabaret use. This section shall apply to any cabaret use hereafter or previously granted by the Board of Zoning Appeals. For purposes of this section, the term "cabaret" shall be the same as defined in Chapter 96 of the Code of the Town of Hempstead. [Effective 3-31-1997]
