A.
Establishment and organization.
(1)
The Board of Appeals heretofore established
pursuant to Village Law is hereby continued with all powers and duties
prescribed by law and by this chapter.
(2)
The Board of Appeals shall continue to consist
of five members appointed for five year terms. The members of the
Board of Appeals in office at the time this chapter takes effect shall
continue in office until the end of the term for which they are appointed
and have been duly qualified. No person shall serve on the Board of
Appeals for more than two consecutive terms.
[Amended 6-15-1999 by L.L. No. 3-1999]
(3)
The Mayor shall appoint the Board of Appeals
and the Chairperson of the Board of Appeals, subject to the approval
of the Board of Trustees. In the absence of a Chairperson, the Board
of Appeals may designate one of its members to serve as Acting Chairperson.
[Amended 6-15-1999 by L.L. No. 3-1999]
(4)
The Mayor shall appoint an alternate member
of the Board of Appeals, subject to the approval of the Board of Trustees,
to serve for a period of five years. The alternate member shall substitute
for a member of the Board of Appeals in the absence of a member or
in the event that a member is unable to participate because of a conflict
of interest. All provisions of this chapter relating to Zoning Board
of Appeals members' attendance, eligibility, vacancy in office, removal
and service on other boards shall also apply to the alternate member.
[Added 6-15-1999 by L.L. No. 3-1999]
(5)
No person who is a member of the Board of Trustees
shall be eligible for membership on the Board of Appeals.
(6)
Any member of the Board of Appeals may be removed
by the Mayor for cause and after a public hearing.
(7)
In the event of a vacancy in office, the Mayor
shall appoint a successor, who shall serve for the unexpired term
of the member whose place has become vacant.
[Amended 6-15-1999 by L.L. No. 3-1999]
B.
Meetings; minutes; records.
(1)
All meetings of the Board of Appeals shall be
held at the call of the Chairperson and at such other times as the
Board of Appeals may determine.
(2)
Meetings of the Board of Appeals shall be open
to the public to the extent provided in Article 7 of the Public Officers
Law.
(3)
The Chairperson or, in his absence, the Acting
Chairperson may administer oaths and compel the attendance of witnesses.
[Amended 6-15-1999 by L.L. No. 3-1999]
(4)
The Board of Appeals shall keep minutes of its
proceedings. The minutes shall show the vote of each member upon every
question, or, if absent or failing to vote, indicate such fact. The
Board of Appeals shall also keep records of its examinations and other
official actions.
(5)
Every rule, regulation, every amendment or repeal
thereof and every order, requirement, decision, interpretation or
determination of the Board of Appeals shall be filed in the office
of the Board and with the Village Clerk and Village Manager within
five business days and shall be a public record. A copy of each decision
on any appeal shall also be filed with the Planning Board and the
Building Inspector.
(6)
The Board of Appeals may employ such clerical
or other staff assistance, subject to the approval of the Village
Manager, provided that it shall not incur expenses beyond the amount
of the appropriation made and then available for that purpose.
(7)
The Chairperson of the Board of Appeals may
designate the alternate member to substitute for a member of the Board
of Appeals when such member is absent or is unable to participate
because of a conflict of interest on an application or matter before
the Board of Appeals. When so designated, the alternate member shall
possess all the powers and responsibilities of a member of the Board.
Such designation shall be entered into the minutes of the initial
Zoning Board of Appeals meeting at which the substitution is made.
[Added 6-15-1999 by L.L. No. 3-1999]
C.
Powers and duties. The Board of Appeals shall have
all the powers and duties prescribed by law and by this chapter, including,
without limitation, the following:
(1)
Upon application by any person aggrieved or by an officer, department, board or bureau of the Village, the Board of Appeals shall hear and decide appeals from and review any order, requirement, decision, interpretation or determination made by the administrative official charged with the enforcement of this chapter. On such an appeal the Board of Appeals shall have the power to decide any question involving the interpretation of any provision of this chapter, including the determination of the exact location of any district boundary if uncertainty with respect thereto remains after exhausting the rules specified in § 295-8 above.
(4)
The Board of Appeals shall have the power to
hear and decide all matters referred to it upon which it is required
to pass under this chapter.
A.
Appeals shall be taken within 60 days after the filing
in the Village Clerk's office of any order, requirement, decision,
interpretation or determination of the administrative officer charged
with enforcement of this chapter, by filing with the officer from
whom the appeal is taken and with the Board of Appeals a notice of
appeal. The officer from whom the appeal is taken shall forthwith
transmit to the Board of Appeals all of the papers constituting the
record upon which the action appealed from was taken.
[Amended 6-15-1999 by L.L. No. 3-1999]
B.
All notices of appeal shall be made in writing on official Village forms, accompanied by a fee in the amount set by the Board of Trustees pursuant to § 295-152 of this chapter, and shall state:
(1)
The relief requested and the grounds upon which
the request is based.
(2)
The specific provisions of this chapter involved.
(3)
The order, requirement, decision or determination
to be reviewed.
(4)
The exact interpretation of this chapter that
is claimed.
(5)
The details of any variance sought and the grounds
for granting it.
C.
Each notice of appeal shall certify the ownership
of the property and the nature of the interest of the applicant if
other than the owner of record.
[1]
Editor’s Note: Former § 295-141, Referral to Planning
Board, was repealed 8-21-2018 by L.L. No. 3-2018.
An appeal stays all proceedings in furtherance
of the action appealed from, unless the officer from whom the appeal
is taken certifies to the Board of Appeals after the notice of appeal
shall have been filed with him or her that, by reason of facts stated
in the certificate, a stay would, in his or her opinion, cause imminent
peril to life or property, in which case proceedings shall not be
stayed otherwise than by a restraining order, which may granted by
the Board of Appeals or by a court of record on application, on notice
to the officer from whom the appeal is taken, and on due cause shown.
A.
The Board of Appeals shall fix a reasonable time for
the hearing of the appeal and give due notice thereof to the parties
and the Planning Board at least 14 days before the hearing. The notice
shall state the time and place of the hearing, the street address,
sheet, lot and block, zoning district and location of the premises;
the name of the applicant; and a brief description of the nature of
the appeal.
B.
Not less than 10 days before the hearing date, that
notice shall be published at least once in a newspaper of general
circulation in the Village.
C.
In addition, the applicant shall provide actual notice to certain
property owners as follows:
[Amended 2-1-2005 by L.L.
No. 1-2005; 8-22-2017 by L.L. No. 2-2017]
(1)
The applicant shall either deliver by hand or send by certified
mail a copy of the notice of the hearing to all persons who, according
to the latest completed assessment roll of the Town of Greenburgh,
own property within a radius of 300 feet of the property lines of
the subject property; provided, however, that where, in the opinion
of the Building Inspector, the appeal may affect property located
more than 300 feet from the property lines of the subject property,
the applicant shall thus notify all owners of property within that
affected area, as determined by the Building Inspector, but need not
notify any person owning property more than 500 feet from the property
lines of the subject property.
(2)
The notices shall be delivered by hand not less than 10 days, or mailed or otherwise delivered not less than 13 days, before the date of the hearing to the street address of each of the properties specified in Subsection C(1), whether or not the owner resides there, and to any other address indicated by the assessment roll as the address of an absentee owner.
(3)
The public hearing shall not be held unless the applicant has filed with the Board the proof of the mailing of notice or, if the notice was delivered by hand, a written affidavit of service; provided, however, that the Board of Appeals may excuse the failure to notify each property owner pursuant to this Subsection C upon proof by the applicant of diligent efforts to comply with the requirements of this Subsection C and upon a showing that reasonable grounds exist for that failure to comply, including, without limitation, difficulties in determining lot lines or the names or addresses of the property owners.
D.
At least 10 days before such hearing, the Board shall
mail notices thereof to the parties, to the regional state park commission
having jurisdiction over any state park or parkway within 500 feet
of the property affected by such appeal and to the County Planning
Board as required by § 239-m of the General Municipal Law.
A.
At the hearing on the appeal, any party may appear
in person or by agent or attorney.
B.
The Board of Appeals shall decide the appeal within
62 days after the final hearing on the appeal. The time within which
the Board of Appeals must render its decision may be extended by mutual
consent of the applicant and the Board.
C.
The Board of Appeals may reverse or affirm, wholly
or partly, or may modify the order, requirement, decision, interpretation
or determination appealed from and shall make such order, requirement,
decision, interpretation or determination as, in its opinion, ought
to be made in the matter by the administrative official charged with
enforcement of this chapter and to that end shall have all the powers
of the officer from whom the appeal is taken.
D.
The concurring vote of a majority of the Board of
Appeals shall be necessary to reverse any order, requirement, decision,
interpretation or determination of any such administrative official,
or to decide in favor of the applicant any matter upon which it is
required to pass under this chapter or to effect any variation in
this chapter.
E.
All decisions of the Board of Appeals shall be by
resolution. Each decision shall state in detail the conditions and
safeguards, if any, which the Board of Appeals deems to be required
and accordingly imposes.
F.
The Board of Appeals shall file a copy of each decision
with the Village Clerk within five business days after the decision
is made and it shall be a public record; the decision shall have no
force or effect until it is thus filed. A copy of the decision shall
also be mailed to the applicant.[1]
[1]
Editor’s Note: Former Subsection G, regarding disapproval
of a proposal, which immediately followed, was repealed 8-21-2018
by L.L. No. 3-2018.
[Amended 6-15-1999 by L.L. No. 3-1999]
A motion for the Zoning Board of Appeals to
hold a rehearing to review any order, decision or determination of
the Board of Appeals not previously reheard may be made by any member
of the Board. A unanimous vote of all members of the Board then present
is required for such rehearing to occur. Such rehearing is subject
to the same notice provisions as an original hearing. Upon such rehearing
the Board may reverse, modify or annul its original order, decision
or determination upon the unanimous vote of all members then present,
provided that the Board finds that the rights vested in persons acting
in good faith in reliance upon the reheard order, decision or determination
will not be prejudiced thereby.
A.
The Board of Appeals, on appeal from the decision
or determination of the administrative officer charged with enforcement
of this chapter, shall have the power to grant use variances and area
variances, as defined herein.
B.
Use variances.
(1)
"Use variance" shall mean the authorization
by the Board of Appeals for the use of land for a purpose that is
otherwise not allowed or is prohibited by the applicable zoning regulations.
(2)
No 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:
(a)
The applicant cannot realize a reasonable return,
provided that lack of return is substantial as demonstrated by competent
financial evidence;
(b)
The alleged hardship relating to the property
in question is unique, and does not apply to a substantial portion
of the district or neighborhood;
(c)
The requested use variance, if granted, will
not alter the essential character of the neighborhood; and
(d)
The alleged hardship has not been self-created.
(3)
The Board of Appeals, in the granting of a use
variance, 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.
C.
Area variances.
(1)
"Area variance" shall mean the authorization
by the Board of Appeals for the use of land in a manner that is not
allowed by the dimensional or physical requirements of the applicable
zoning regulations.
(2)
In determining whether to grant an area variance,
the 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 of Appeals
shall also consider:
(a)
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.
(b)
Whether the benefit sought by the applicant
can be achieved by some method, feasible for the applicant to pursue,
other than an area variance.
(c)
Whether the requested area variance is substantial.
(d)
Whether the proposed variance will have an adverse
effect or impact on the physical or environmental conditions in the
neighborhood or district.
(e)
Whether the alleged difficulty was self-created,
which consideration shall be relevant to the Board of Appeals but
shall not necessarily preclude the granting of the area variance.
(3)
The Board of Appeals, in the granting of an
area variance, 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.
Imposition of conditions. The Board of Appeals shall,
in the granting of both use variances and area variances, have the
authority to impose such reasonable conditions and restrictions as
are directly related to and incidental to the proposed use of the
property. Such conditions shall be consistent with the spirit and
intent of this chapter, and shall be imposed for the purpose of minimizing
any adverse impact such variance may have on the neighborhood or community.
A.
Variances granted pursuant to this chapter and which
cannot fully be exercised without a building permit shall automatically
lapse and become null and void if a building permit issued in accordance
with the variance is not obtained within 12 months after it has been
granted. If a building permit is obtained, the variance shall automatically
lapse and become null and void:
B.
Variances granted before the effective date of this
chapter and which cannot fully be exercised without a building permit
shall automatically lapse and become null and void if a building permit
issued in accordance with the variance is not obtained within 12 months
after it has been granted. If a building permit is obtained, the variance
shall automatically lapse and become null and void:
C.
Variances granted pursuant to this chapter and which
can be fully exercised without a building permit shall automatically
lapse and become null and void to the extent the variance is not fully
exercised within six months after it has been granted.
D.
Variances granted before the effective date of this
chapter and which can be fully exercised without a building permit
shall automatically lapse and become null and void to the extent the
variance is not fully exercised within six months after the effective
date of this chapter.
E.
Variances shall be subject to the same requirements
and restrictions as lawfully nonconforming lots, structures, buildings
and uses, including, without limitation, the provisions of this chapter
relating to the abandonment of nonconforming lots, structures, buildings
and uses.
