[Effective 8-30-2007; 4-14-2009]

A. By this legislation, it is the intent of the Town Board of the Town of Hempstead to utilize the zoning authority to establish a sensible regulatory scheme in regard to the introduction or expansion of religious or educational uses in the Town. The several provisions hereof are designed and intended to strike a fair and appropriate balance between the needs and rights of educational and religious institutions that desire to establish new facilities or expand existing ones in the Town, and the concerns of the surrounding Town inhabitants about the potential adverse effects on the quality of life that these uses may engender.

B. This legislation fully recognizes the settled public policy in the State of New York that systematic exclusion of religious or educational institutions from a zoning district is beyond the power of any municipality, because such uses are always presumed to be in furtherance of the public health, safety and morals. However, it is equally established in New York that this presumption is subject to rebuttal on a case by case basis by a substantial showing that a proposed religious or educational use at a particular location would actually have a net negative impact on the surrounding neighborhood. Some specific instances in which religious or educational uses may be found to have negative effects are where they may impose:

(1) A significant traffic congestion problem that jeopardizes public safety;

(2) A substantial adverse effect on surrounding property values;

(3) A significant over-taxation of basic municipal services; and/or

(4) A cognizable and substantial fire or other emergency risk.

C. This legislation accommodates the competing interests as aforesaid by establishing a reasonably drawn special permit requirement for applications seeking to establish or expand religious or educational uses in the Town, to be implemented by the Board of Appeals.

D. Ultimately, the governing standard to guide the Board's deliberations in passing on the merits of such applications shall be the protection of the public's health, safety, welfare and morals. Where it may be shown that a proposed religious or educational use will sufficiently detract from the public's health, safety, welfare or morals, an application for a special exception to establish or expand the institution may properly be denied by the Board. In less adverse cases, appropriate restrictions may be imposed in the form of conditions to be attached to the grant of a special exception, limiting either the extent of the religious or educational use itself, or the nature and/or extent of its proposed accessory uses, if any. In any event, such conditions shall be reasonably drawn to counteract the deleterious effects on the public's welfare, but not, by their cost, magnitude or volume, operate indirectly to exclude the religious or educational use altogether.

In this article, the following terms shall have the meanings provided:

ACCESSORY USE - A use of a building or premises that, while not religious or educational in nature, is customarily incidental to the primary use of a building or premises as a religious or educational use.

EDUCATIONAL USE - A private school that has been chartered by the Board of Regents of the State of New York.

RELIGIOUS USE - A house of worship or other place regularly and primarily devoted to religious practice.

A. Upon the effective date of this article and at all times thereafter, no religious use or educational use may be established or expanded in any use district of the Town unless and until a special exception permit has been granted to authorize same, as provided in this article.

B. Accessory uses.

(1) Upon the effective date of this article and at all times thereafter, no accessory use shall be permitted in any use district of the Town unless it is located on the same parcel as the primary religious or educational use to which it is accessory, or immediately adjacent thereto, and a special exception permit has been granted by the Board of Appeals, expressly finding same to be a bona fide accessory use and authorizing its conduct in conjunction with the on-site primary religious or educational use to which it relates, or such proposed accessory use is not on the same or immediately adjacent premises but is in any event an independently permitted use in the zoning district in which it is located, such that any proposed accessory use which is not on the same parcel as its primary religious or educational use, or immediately adjacent thereto, and is not an independently permitted use in the zoning district in which it is located, shall be deemed a prohibited use under this ordinance and shall not be permitted except upon the grant of a use variance, regardless of either its status as "customarily incident" to a primary religious or educational use that is located elsewhere or its affiliation or legal relationship with any such religious or educational use.

A. All applications for a special exception permit under this article shall originate by the filing of a building permit application with the Commissioner of Buildings.

B. If the application is denied for a violation of this article, applicant may file an application to the Board of Appeals for a special exception permit as provided herein, on a form to be provided by the Board.

C. The special exception procedure shall be subject to the same public notice, hearing and decisional requirements as are applications to the Board of Appeals in the case of area or use variances.

D. The Board of Appeals, in passing on applications for special exception permits hereunder, shall resolve all questions of fact that are put before it, and shall determine whether a grant of the application shall protect and preserve the public's health, safety, welfare and morals. In this regard, it shall specifically consider whether the particular religious use, educational use or accessory use may impose the following negative impacts:

(1) A significant traffic congestion problem that jeopardizes public safety;

(2) A substantial adverse effect on surrounding property values;

(3) A significant over-taxation of basic municipal services;

(4) A cognizable and substantial fire or other emergency risk; and/or

(5) Any other negative impact, including chronic conditions of substantial noise disturbance or garbage accumulation, which may necessarily occur as a result of the conduct of the proposed use, as may be borne out by substantial evidence in the record before the Board.

E. Decision.

(1) If the Board of Appeals finds that the proposed religious, educational or accessory use may be introduced or expanded at the proposed location without any significant negative impacts, it may grant the special exception permit requested.

(2) If the Board finds that such proposed use may not be introduced or expanded at the proposed location without causing significant negative impacts, but that such negative impacts may be substantially mitigated by imposition of appropriate conditions that do not, by their cost, magnitude or volume, operate indirectly to exclude the use altogether, then the Board may grant the special exception, subject to such conditions.

(3) If the Board finds that such proposed use may not be introduced or expanded at the proposed location without causing significant negative impacts, and that such negative impacts cannot be substantially mitigated by imposition of appropriate conditions that do not, by their cost, magnitude or volume, operate indirectly to exclude the use altogether, and that the degree of negative impact is such that the introduction or expansion of the proposed religious, educational or accessory use at a particular location would actually have a net negative impact on the surrounding residential neighborhood or be substantially dangerous to the surrounding area, then the Board may deny the special exception.

The fees for a special exception permit or a renewal thereof under this article shall be in accord with the fees applicable to special exceptions under § 257 of Article XXVI of this ordinance.

This article shall be construed such that the regulations hereof shall not relieve an applicant for relief hereunder from full compliance with other provisions of this ordinance, including but not limited to Article XXXII in relation to private schools, as well as any and all other applicable law or regulations, except that if there shall be a conflict between this article and any other law or regulation, then the provisions of this article shall control. If any provision of this article is held unconstitutional or otherwise unenforceable by any court of competent jurisdiction to the extent that the Town may become bound thereby not to enforce it, then it is only that specific provision which shall not be enforced, and the balance of the provisions hereof shall thereafter remain in full force and effect.