The Town recognizes that strict application
of the standards and restrictions of this chapter may cause difficulty
or hardship. When this can be shown, such standards and restrictions
may be varied or modified provided that the following criteria are
met, which criteria the Town Board has determined, in accordance with
Town Law § 267-b(3), properly balance the burdens on and
benefits to the property owner and the health, safety and welfare
of the general community. The applicant has the burden of demonstrating
the following:
A.
All development other than erosion protection structures
and hazard-area floodproofing:
(1)
No new building or other structure may be constructed
in an erosion hazard area.
(2)
No reasonable, prudent, alternative site is available.
(3)
All responsible means and measures to mitigate adverse
impacts on natural systems and their functions and values have been
incorporated into the activity's design at the property owner's expense.
(4)
The development will be reasonably safe from flood
and erosion damage.
(5)
The variance requested is the minimum necessary to
overcome the practical difficulty or hardship which was the basis
for the requested variance.
(6)
Where public funds are utilized, the public benefits
must clearly outweigh the long-term adverse effects.
(7)
No natural protective feature will be polluted, functionally
impaired or lost, or placed in peril thereof, and any degradation
or diminution of natural protective features must be minimized to
the fullest extent feasible.
(8)
The proposed work and location will have a less adverse
environmental impact than any available practicable alternative.
(9)
For all development other than reconstruction of a
lawfully preexisting principal residence structure that has been damaged
by accidental cause such as fire, flooding or erosion, alternative
designs entailing smaller buildings or structures or diminished or
reconfigured areas of use are determined not to be effective in preventing
loss of or potential damage to designated natural features, or the
only such designs are found to be infeasible or unlawful.
(10)
A primary purpose of this chapter is to require
over time that structures in the erosion hazard area (e.g., in the
primary and secondary dunes) or in nonconforming locations in the
adjacent area be relocated to conforming locations in the adjacent
area. Therefore, the cumulative maximum addition to ground coverage
of all additions to a lawfully preexisting nonconforming residence:
(a)
In the erosion hazard area may not exceed the limit allowed pursuant to § 138-12B(1)(e) and § 138-12B(2)(c) of up to but less than 25%; and
(b)
In the adjacent area may not exceed the limit
allowed pursuant to § 138-14D, which limit is up to 25%
or, in certain circumstances, up to 50%.
B.
Erosion protection structures. This chapter prohibits
all use of erosion protection structures, except in emergencies where
only temporary geotextile tube systems are allowed in limited circumstances.
Therefore, to obtain a variance from the prohibition of erosion protection
structures, the applicant shall have the burden of establishing exceptional
hardship, which shall include all of the following:
(1)
The applicant cannot realize a reasonable return from
any use of the property without an erosion protection structure.
(2)
The alleged exceptional hardship relating to the applicant's
property is unique, and does not apply to a substantial portion of
the coastline.
(3)
The erosion protection structure and its construction,
if allowed, will not alter the essential character of the neighborhood,
including, without limitation, that it will not:
(a)
Cause or exacerbate either temporary or long-term
erosion at the site or at any other location;
(b)
Cause or exacerbate either temporary or long-term
loss or narrowing of the beach or public access to the beach at the
site or at any other location; or
(c)
Adversely affect existing erosion protection
structures or natural features and resources such as beaches, dunes,
bluffs, and fish and wildlife habitats.
(4)
The applicant has relocated the principal structures as far from coastal waters as possible and has reconstructed them in accordance with all applicable floodproofing regulations, including those set forth in Southampton Town Code Chapter 169, Flood Damage Prevention, and those established by the Federal Emergency Management Agency.
(5)
The erosion protection structure is the only measure
available to overcome the alleged hardship.
(6)
The alleged hardship has not been self-created.
C.
Floodproofing in a hazard area. A variance may be
granted for floodproofing a lawfully preexisting building located
in the hazard area by placing it on adequately anchored pilings, subject
to the following conditions:
(2)
The building is raised either to the elevation required
by FEMA guidelines or such that at least three feet of open space
exists between the floor joists and the surface of the preexisting
grade, whichever results in the higher elevation.
(3)
The space below the lowest horizontal structural members
is left free of obstruction.
(4)
The building is not located further seaward after
floodproofing than it was before floodproofing and, in any event,
is not located seaward of the crest of the primary dune.
(5)
The dune is not excavated except to the minimum extent
required to place the pilings.
(6)
The volume and cross-sectional area of the dune are
not diminished as a result of the project and the project includes
restoration and/or replenishment of the dune as may be required to
meet this condition.
(7)
All responsible means and measures to mitigate adverse
impacts on natural systems and their functions and values have been
incorporated into the activity's design at the property owner's expense.
(8)
The development will be reasonably safe from flood
and erosion damage.
(9)
The
variance requested is the minimum necessary to overcome the practical
difficulty or hardship which was the basis for requesting it.
[Added 8-10-2010 by L.L. No. 24-2010]
(10)
Where public funds are utilized, the public benefits clearly outweigh
the long-term adverse effects of any proposed activities and development.
[Added 8-10-2010 by L.L. No. 24-2010]
A.
Any request for a variance must be in writing and specify the standard, restriction or requirement to be varied and how the requested variance meets the criteria of § 138-22 of this chapter. The burden of demonstrating that the requested variance meets those criteria rests entirely with the applicant.
B.
The Building Inspector shall forward a copy of each
request for a variance to the Town Board so that the Town Board may
consider acquisition of the property for public purposes.
Each variance request must be accompanied by
a required fee or fees as established by the Town Board under separate
resolution.
Any construction activity allowed by a variance
granted by the Coastal Erosion Hazard Board of Review must be completed
within one year from the date of approval or approval with modifications
or conditions. Variances expire at the end of this one-year period
without further hearing or action by the Coastal Erosion Hazard Board
of Review. The expiration of a variance shall not prohibit a subsequent
application for the same or a different variance, and the subsequent
application shall be considered on its own merits at the time it is
reviewed.
The Zoning Board of Appeals is hereby designated
as the Coastal Erosion Hazard Board of Review and has the authority
to:
A.
Hear, approve, approve with modification or deny requests
for variances or other forms of relief from the requirements of this
chapter.
B.
Hear and decide appeals where it is alleged there
is error in any order, requirement, decision or determination made
by the Administrator in the enforcement of this chapter, including
any order requiring an alleged violator to stop, cease and desist.
The Coastal Erosion Hazard Board of Review may,
in conformity with the provisions of this chapter, reverse or affirm,
wholly or partly, or may modify the order, requirement, decision or
determination of the Administrator, including stop or cease-and-desist
orders. Notice of such decision will forthwith be given to all parties
in interest. The rules and procedures for filing appeals are as follows:
A.
Appeals must be filed with the Coastal Erosion Hazard
Board of Review Clerk.
B.
All appeals made to the Coastal Erosion Hazard Board
of Review must be in writing on standard forms prescribed by the Board.
The Board will transmit a copy to the Commissioner of the New York
Department of Environmental Conservation for his information.
C.
All appeals must refer to the specific provisions
of this chapter involved, specify the alleged errors, the interpretation
thereof that is claimed to be correct and the relief which the appellant
claims.
Any person or persons jointly or severally aggrieved
by a decision by the Coastal Erosion Hazard Board of Review or any
officer, department, board or bureau of the Town may apply to the
Supreme Court for review by a proceeding under Article 78 of the Civil
Practice Law and Rules.
