In any commercial or industrial district, any use which would otherwise be permitted without obtaining a special permit shall be allowed only after obtaining a special permit from the Town Board in accordance with the procedures set forth in Article XII: Permits of this chapter, if the premises where such use is proposed is within 500 feet of premises owned by a school, college, university or other educational institution or within 500 feet of premises occupied and used exclusively for educational or religious purposes. The five-hundred-foot distance shall be measured on a straight line between the nearest boundaries of the respective premises.

Procedure for obtaining special permits.

A. Whenever a special use permit is required by this chapter, the applicant shall proceed in accordance herewith. Application for a special use permit shall be made in writing and filed with the Department of Building and Fire Prevention on the relevant Town application forms. The application must include plans and specifications as detailed in the Town's application forms and/or information as may otherwise be required by the Town, including as per the Director of Building and Fire Prevention, the Director of Engineering and Planning, and/or their designee. Applications shall be posted on the Town's website for public review at least 10 calendar days prior to the day of the public hearing to be had on such application.

B. Within a reasonable time the board to which such application is directed (or, if such powers have been delegated by the board to the clerk of the board or to the Building Inspector or designee, then such official) shall direct a public hearing to be held on the application and fix the date of such hearing. The hearing shall be held within 62 days after filing of the application. Publication of notice of hearing shall be made by the board once in the official newspaper at least five days prior to the hearing date, and the board shall also mail written notice of such hearing to all property owners within 750 feet in all directions at least five days before the date of such hearing. Proof of publication and mailing shall be filed with the Building Inspector or designee before the hearing date. The board may delegate the power to call the hearing and fix hearing dates to its clerk or to the Building Inspector or designee.

C. At such hearing, the board may take such testimony and thereafter conduct such investigation as it deems necessary and shall, within 62 days after the hearing, grant or deny the application or grant the same on conditions stated in the decision. The decision of the board shall be entered in its minutes and filed with the Town Clerk of the Town of Henrietta. If the special use permit is granted, the decision of the board shall direct the Building Inspector or designee to issue a building permit or certificate of occupancy, as may be appropriate, in conformity with the decision, upon payment of the required fee.

D. In the case of an application to the Town Board, the Town Board may, if it so desires and in its own discretion, before taking final action, refer the application to the Planning Board. Within 30 days after receipt of the application and the supporting papers filed in connection therewith, the Planning Board shall report its recommendations thereon to the Town Board, accompanied by a full statement of its reasons for the recommendations. Said recommendations are not binding upon the Town Board. If the Planning Board fails to report on a referred application prior to the time the Town Board is ready to act on the application, the Town Board may take action relative to the application as it sees fit, without any report.

E. Fees shall be as established by Town Board resolution and paid to the Town Clerk as required by law.
 

In considering an application for a special use permit, the Town Board shall make its decision based upon the following factors. The Town Board may impose conditions, including in order to resolve any issues identified via its assessment of said factors.

A. Whether the proposed use is substantially consistent in its scale and character with those uses permitted and the existing built permitted uses in the subject zoning district and neighborhood or will otherwise impair such uses due to inconsistency.
B. Whether the proposed use aligns with the vision, goals and recommendations of the Comprehensive Plan and other applicable plans and studies conducted by or on behalf of the Town.
C. Whether the proposed use aligns with the purpose, intent, and applicable design and development standards of the zoning district(s) in which the use is proposed to be located.
D. Whether the proposed use will be a nuisance in law or in fact due to its being materially noxious, offensive or injurious by reason of the production of or emission of dust, smoke, refuse, poisonous substances, odors, fumes, noise, radiation, vibration, unsightliness or similar conditions, or will contaminate waters.
E. Whether the proposed use will create material hazards or dangers to the public or to persons in the vicinity from fire, explosion, electricity, radiation, traffic congestion, crowds, parking of vehicles, or other causes.
F. Whether the proposed use will create materially adverse impacts that cannot be adequately mitigated, such as to adversely impact natural resources or the environment, agriculture, community services or other areas required to be addressed by the State Environmental Quality Review Act (SEQRA).
G. Whether the physical conditions and characteristics of the site are suitable for the proposed use considering site size, configuration, location, access, topography, vegetation, soils, and hydrology for effective stormwater management and, if necessary, the ability to be screened from neighboring properties and public roads.
H. Whether there are adequate public infrastructure, utilities, community facilities and emergency services, either existing or to be provided by the applicant or others, to effectively serve the proposed use. A proposed use shall not create or contribute to an existing inadequacy.
I. Whether the proposed use will provide, maintain, or enhance, as necessary, safe and efficient vehicular traffic patterns, nonmotorized travel, and pedestrian circulation as well as, where feasible, access to public spaces, parks, recreation, and open space resources.

Duration of special permits.

A. The approval or granting of a "special use permit" shall mean the authorization pursuant to this article of a specially permitted use (i.e., a use requiring a special use permit), which authorization is required prior to engaging in any such specially permitted use, and which is thus also required prior any issuance of a building permit or certificate of occupancy related to any specially permitted use.

B. Validity and expiration. After a special use permit has been granted, said special use permit shall expire and become null and void and of no effect one year after it is granted, unless, within such year:

(1) A principal use allowed per such special use permit actually, materially and legally commences; or,

(2) A certificate of occupancy/compliance relating to a principal building, structure or use authorized pursuant to such special use permit (i.e., not an accessory building/structure/use, unless only an accessory building/structure/use is authorized via the special use permit) is duly issued; or

(3) A building permit required for a principal building or structure authorized pursuant to such special use permit (i.e., not for an accessory building/structure, unless only an accessory building/structure is authorized) is duly applied for, in which case the special use permit shall continue to be valid during the term of any active building permit for a principal building or structure authorized pursuant to such special use permit (should one be issued), and such special use permit shall expire and become null and void and of no effect at such time as there is no such currently active and valid building permit for a principal building or structure (e.g., all such building permits are expired, have been revoked, etc.), unless:

(a) Work authorized via any such building permit has been actually, materially and legally commenced; or,
(b) A certificate of occupancy relating to such valid building permit is duly issued; or
(c) A principal use (i.e., not an accessory use, unless only an accessory use was authorized via the special use permit) allowed per such special use permit actually and legally commences during the pendency of any such valid building permit.
 

(4) If other government permitting is required for construction (including, e.g., from the DOT, etc.) and a permit is duly issued by such other governmental agency and provided to the Town within such year, the special use permit shall be valid for six additional months beyond the original expiration date (18 total months), and shall thereafter expire and become null and void and of no effect, unless, within such 18 months a requirement as per Subsection B(1), B(2), or B(3) above is satisfied.

C. Extension. The Town Board, for good cause shown, may grant a longer period of time for the commencement of use, issuance of a certificate of occupancy/compliance, issuance of a building permit, and/or commencement of construction, provided, however, said application for extension shall be made before expiration of time. Such extensions shall be issued for periods of up to six months each.

D. Cause for extension. In determining whether good cause exists for such extension, the Town Board shall consider, among other things, the nature and extent of the construction and complexity thereof, practical difficulty tending to delay construction, availability of utilities, strikes, scarcity of labor or materials, war or acts of God.

E. Any special use permit granted by the Town may be revoked by the Town Board after notice and a hearing for any knowing violation of any provision of federal, state and local law or ordinance relating to the conduct of business and the use or maintenance of the premises or the knowing failure to comply with all the notices, orders, decisions and rules and regulations made by the Town governing the occupation and use of the premises by the applicant or a duly authorized agent or employee of the applicant in charge of the use.

F. Notice of a hearing for the revocation of a special use permit shall be given, in writing, by the Town Clerk. The notice shall specifically set forth the grounds upon which the proposed revocation is based and the time and place of the hearing. It shall be served by mailing a copy to the applicant at his last known address by certified mail, return receipt requested, at least five days prior to the date set for the hearing.

G. At the hearing, the applicant shall have the right to appear and be heard, to be represented by an attorney, to present witnesses on his own behalf, to cross-examine opposing witnesses and to have a permanent record made of the proceedings at his own expense. The Town Board shall revoke or suspend the special use permit if it is satisfied by a preponderance of the evidence that the applicant is guilty of the acts charged.

H. The Town Board may issue another special use permit to a person whose special permit has been revoked as provided in this section if, after a hearing, it is satisfied by clear and convincing evidence that the acts which led to the revocation will not occur again; otherwise, no person whose special use permit has been revoked nor any person acting on his behalf, directly or indirectly, shall be issued another special use permit to carry on the same activity.