There shall be a Board of Appeals of five members
pursuant to the provisions of § 7-712 of the Village Law.
The Board of Appeals shall have all the powers
and duties prescribed by §§ 7-712-a and 7-712-b of
the Village Law and by this chapter, which are more particularly specified
as follows, provided that none of the following provisions shall be
deemed to limit any power of the Board that is conferred by law:
A.
Interpretation. On appeal from an order, requirement,
decision, interpretation or determination made by an administrative
official, or on request by any official, board or agency of the Village,
to decide any of the following questions:
B.
Variances.
[Amended 7-15-1999 by L.L. No. 2-1999]
(1)
Use variances.
(a)
The Board of Appeals, on appeal from the decision
or determination of the administrative officer charged with the enforcement
of such local law, shall have the power to grant use variances, as
defined herein.
(b)
No such use variance shall be granted by the
Board of Appeals without a showing by the applicant that applicable
zoning regulations and restrictions have caused unnecessary hardship.
In order to prove such unnecessary hardship, the applicant shall demonstrate
to the Board of Appeals that for each and every permitted use under
the zoning regulations for the particular district where the property
is located:
[1]
The applicant cannot realize a reasonable return,
provided that lack of return is substantial as demonstrated by competent
financial evidence;
[2]
That the alleged hardship relating to the property
in question is unique and does not apply to a substantial portion
of the district or neighborhood;
[3]
That the requested use variance, if granted,
will not alter the essential character of' the neighborhood; and
[4]
That the alleged hardship has not been self-created.
(c)
The Board of Appeals, in the granting of use
variances, shall grant the minimum variance that it shall deem necessary
and adequate to address the unnecessary hardship proved by the applicant
and at the same time preserve and protect the character of the neighborhood
and the health, safety and welfare of the community.
(d)
"Use variance" shall mean the authorization
by the Zoning Board of Appeals for the use of land for a purpose which
is otherwise not allowed or is prohibited by the applicable zoning
regulations.
(2)
Area variances.
(a)
The Zoning Board of Appeals shall have the power,
upon an appeal from a decision or determination of the administrative
official charged with the enforcement of such local law, to grant
area variances as defined herein.
(b)
In making its determination, the Zoning Board
of Appeals shall take into consideration the benefit to the applicant
if the variance is granted, as weighed against the detriment to the
health, safety and welfare of the neighborhood or community by such
grant. In making such determination, the Board shall also consider:
[1]
Whether an undesirable change will be produced
in the character of the neighborhood or a detriment to nearby properties
will be created by the granting of the area variance;
[2]
Whether the benefit sought by the applicant
can be achieved by some method, feasible for the applicant to pursue,
other than an area variance;
[3]
Whether the requested area variance is substantial;
[4]
Whether the proposed variance will have an adverse
effect or impact on the physical or environmental conditions in the
neighborhood or district; and
[5]
Whether the alleged difficulty was self-created,
which consideration shall be relevant to the decision of the Board
of Appeals, but shall not necessarily preclude the granting of the
area variance.
(c)
The Board of Appeals, in the granting of area
variances, shall grant the minimum variance that it shall deem necessary
and adequate and at the same time preserve and protect the character
of the neighborhood and the health, safety and welfare of the community.
(d)
"Area variance" shall mean the authorization
by the Zoning Board of Appeals for the use of land in a manner which
is otherwise not allowed by the dimensional or physical requirements
of applicable zoning regulations.
C.
Temporary certificate of occupancy.
(1)
The Board of Appeals shall have the power and duty
to authorize, upon denial by the Building Inspector of a certificate
of occupancy, the issuance of a temporary certificate of occupancy
by the Building Inspector for a period of not to exceed 90 days for
collection of any alterations that are required under the provision
of any law or ordinance or for the collection of a part of an uncompleted
building, provided that the Board finds that:
(a)
The denial of a certificate of occupancy prior
to completion of the said alterations or of the building would cause
unnecessary hardship.
(b)
The safety of the occupants of the building
and of adjacent buildings and land would be adequately assured under
such terms and conditions as said Board may prescribe.
(2)
Such temporary certificate shall not be construed
as in any way altering the respective rights, duties or obligations
of the owner or of the Village in regard to the use or occupancy of
the land or building or any other matter covered by this chapter.
[Amended 5-16-1996 by L.L. No. 3-1996]
The powers and duties of the Board of Appeals
shall be exercised in accordance with Village Law § 7-712-a
and the following procedure:
A.
The Board of Appeals shall not decide upon any appeal
for a variance or for an interpretation of this chapter without first
holding a public hearing. Notice of the public hearing and of the
substance of the appeal or application shall be given by publication
in the official newspaper of the Village at least 10 days before the
date of such hearing and by the posting of a placard notice of the
public hearing to be posted on the premises by the applicant at least
10 days before the date of such hearing. The placard notice shall
be provided by the Building Department, at the cost of the applicant,
and shall state information regarding the application and the time,
date and place of the hearing. In addition to such published and posted
notice, the applicant, at least 10 days prior to the hearing, shall
mail a copy of the public notice of the public hearing by certified
mail, return receipt requested, to the owners of all properties which
lie adjacent to the property that is the subject of the application
and all other owners that the Board of Appeals may deem advisable.
The list of the names and addresses of the owners of all properties
requiring the mailed notice shall be provided to the applicant by
the Building Department. Proof of the publication in the form of a
sworn statement and proof of the posting and mailing in the form of
a sworn statement and the post office return receipts shall be filed
with the Village Clerk on or before the date of the hearing. Such
notice shall contain the following information:
[Amended 5-29-2012 by L.L. No. 1-2012]
(1)
A statement that the applicant proposes to apply to
the Board of Appeals of the Village of Greenport for a variance or
other specified relief, as the case may be.
(2)
A description sufficient to identify the property
which is the subject of the application.
(3)
The zone district classification of such property.
(4)
A detailed statement of the relief sought by the applicant.
(5)
The provisions of this chapter applicable to the relief
sought by the applicant.
(6)
A statement that a public hearing with respect to
such application will be held by the Board of Appeals of the Village
before the relief sought can be granted; that the person to whom the
notice is addressed, or his representative, has the right to appear
and be heard at such hearing; and the time, location and date upon
which the hearing will be held.
B.
In lieu of complying with the provisions of this section,
written verified waivers of notice executed by the persons entitled
to receive such notice may be filed with the Village Clerk at the
time of filing the applications.
C.
Failure to comply with the provisions of this section
shall not affect the validity of any action taken by the Board of
Appeals.
D.
All appeals and applications made to the Board of Appeals shall be in writing, on forms prescribed by said Board, and shall be accompanied by a fee of not less than the actual and necessary costs of advertising and holding a public hearing. The Board of Appeals may, in its discretion, return to the applicant part or all of the fee paid in the event that the appeal, under § 150-26A, Interpretation, is partially or wholly successful. The fee filed in connection with applications under § 150-26B, Variances, shall not be returnable regardless of disposition of the case by the Board.
E.
Each appeal or application shall fully set forth the
circumstances of the case. Every appeal or application shall refer
to the specific provision of the Article involved and shall exactly
set forth the interpretation that is claim or the details of the variance
that is applied for, as the case may be, and the grounds on which
it is claimed that the same should be granted.
F.
Should any appeal involve either of the two following
conditions, the Secretary of the Board of Appeals shall transmit to
the designated office or official a copy of the official notice of
the public hearing not later than 10 days prior to the date of the
hearing:
(1)
Any change in the boundaries of any district, which
change would occur within a distance of one mile of a nuclear power
plant or 500 feet of the boundary of any Village, town or county or
any boundary of a state park or parkway.
(2)
Any change in the regulations prescribed for any district, any portion of which is located within a distance of one mile of a nuclear power plant or 500 feet of the boundaries listed in Subsection F(1) above. The designated official for counties shall be the Clerk of the County Legislature. In Villages and towns, the designated official shall be the Clerk of the municipality. In the case of state parks or parkways, the designated office shall be the Long Island Park Commission.
G.
Prior to the date of any public hearing, the Secretary
of the Board of Appeals shall transmit to the Secretary of the Planning
Board a copy of any appeal or application, together with a copy of
the notice of such hearing. The Planning Board may submit to the Board
of Appeals an advisory opinion on said appeal or application at any
time prior to the rendering of a decision by the Board of Appeals.
I.
Every decision of the Board of Appeals shall be recorded in accordance with standard forms adopted by the Board and shall fully set forth the circumstances of the case and shall contain a full record of the findings on which the decision is based. Every decision of said Board shall be by resolution, and each such resolution shall be filed in the office of the Village Clerk by case number, under the heading "Interpretation" or "Variances," together with all documents pertaining thereto. Regarding its decision in each case, the Board of Appeals shall notify the Building Inspector, Village Board, Village Planning Board and the Municipal Clerk of any affected municipality given notice of hearing as set forth in Subsection F above.
J.
All the provisions of this chapter relating to the
Board of Appeals shall be strictly construed. Said Board, as a body
of jurisdiction, shall act in full conformity with all provisions
of law and of this chapter and in strict compliance with all limitations
contained therein.
K.
Unless construction is commenced and diligently pursued
within six months of the date of the granting of a variance, such
variance shall become null and void.
