City of Glen Cove, NY Article VII Board of Appeals

§ 280-27 Board continued; membership; organization.

A. The Board of Appeals heretofore established pursuant to the provisions of § 81 of the General City Law is hereby continued, with all the powers and duties conferred by such General City Law.

B. Such Board shall consist of seven members, appointed by the Mayor. Their terms of office shall commence on May 1 following the effective date of this chapter and shall be for three years.

C. A concurring vote of four members of the Board shall be necessary for a decision. Meetings of the Board shall be public, and minutes shall be kept giving the sense of testimony taken and the vote of every member on every matter. Such vote shall be taken and recorded in public session. However, the Board may deliberate in private. The Board shall make such rules and regulations, adopt such forms, establish such fees and otherwise adopt such procedures as it may deem necessary for the proper conduct of its work.

§ 280-28 Powers and duties.

The Board of Appeals shall have all the powers and duties prescribed by law, by the Charter of the City and by this chapter, which powers and duties are summarized and more particularly specified as follows, provided that none of the following provisions shall be deemed to limit any power of the Board of Appeals that is conferred by general law:

A. Interpretation. On appeal from an order, requirement, decision or determination made by an administrative official, or on request by any official, agency or board of the City, to decide any question involving the interpretation of any provision of this chapter, including determination of the exact location of any district boundary if uncertainty with respect thereto remains after applying the rules specified in § 280-44.

B. Variances.

[Amended 5-27-1997 by L.L. No. 2-1997]

(1) Use variances.

(a) The Board of Appeals, on appeal from the decision or determination of the administrative official charged with the enforcement of such ordinance or local law, shall have the power to grant use variances as defined herein.

(b) No such use variance shall be granted by a 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 property is located:

[1] The applicant cannot realize a reasonable return, provided that said lack of return is substantial as demonstrated by competent financial evidence.

[2] 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] The requested use variance, if granted, will not alter the essential character of the neighborhood.

[4] The alleged hardship has not been self-created.

(c) The Board of Appeals, in granting use variances, shall grant the minimum variance that it shall deem necessary and adequate to address the unnecessary hardship proven 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.

(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 ordinance or 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.

[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.

C. Procedure. The powers and duties of the Board of Appeals shall be exercised in accordance with the following procedure:

(1) The Board of Appeals shall not decide upon any appeal for a variance or interpretation of this chapter without first holding a public hearing; notice of which hearing, including the substance of the appeal or application, shall be given by the publication in the official newspaper of the City at least five days before the date of such hearing. In addition to such published notice, the Board of Appeals shall cause such notice to be mailed at least 10 days but no more than 20 days before the hearing to all owners of property which lie adjacent to the property for which relief is sought and to each owner of all parcels of property located within a radius of 300 feet measured from all points of the subject property lines by registered or certified mail, return receipt requested. For lots within 500 feet of a municipal boundary, notice shall be mailed in the above-prescribed form to the clerk of the adjacent municipality. The hearing date shall also be advertised by posting of a sign stating the time, date and place of the public hearing to be held on the property which is the subject of an application. The sign shall be posted at least 10 days prior to the date of the hearing. The sign shall be visible from adjacent rights-of-way. If the subject property is on more than one right-of-way, a sign shall be posted facing each right-of-way. If the sign is destroyed or removed from the property, the owner of the subject property shall be responsible for replacing it. Ten days prior to the public hearing, the owner of the subject property shall execute and submit to the Department of Planning an affidavit of proof of the posting of the public notice sign(s) according to this subsection. If the owner of the subject property fails to submit the affidavit, the public hearing will be postponed until after the affidavit has been supplied.

[Amended 8-24-2010]

(a) The names of said owners shall be taken as they appear on the last completed tax roll of the City, except that the addresses must be those of the actual places of residence of the addressees.

(b) Provided that due notice shall have been published and that there shall have been substantial compliance with the remaining provisions of this section, the failure to give notice in exact conformance herewith shall not be deemed to invalidate action taken by the Board of Appeals in connection with the granting of any appeal or variance.

(2) Required fee; exemption.

(a) All appeals and applications made to the Board of Appeals shall be in writing and comply with the Board's rules of procedure and regulations, and shall be accompanied by the required fee. The amount of such fee shall be as may be determined from time to time by the City Council.

(b) No fee shall be payable under this subsection if the owner of the building or property affected is a corporation or association organized and operated exclusively as a house of religious worship or a nonprofit hospital organization or for one or more such purposes, no part of the earnings of which inures to the benefit of any private group or individual, and provided that the property affected is to be used exclusively by such corporation or association for one or more of such purposes.

[Added 5-23-1989]

(3) Each appeal or application shall fully set forth the circumstances of the case, shall refer to the specific provision of this chapter involved and shall exactly set forth, as the case may be, the interpretation that is claimed, the details of the variance that is applied for and the grounds on which it is claimed that the same should be granted.

(4) Not less than six days prior to the date of any public hearing, the Secretary of the Board of Appeals shall transmit to the Secretary to the Planning Board a copy of the official calendar 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.

(5) Prior to final action, the Board of Appeals shall refer any matter involving any of the areas specified in § 280-23E to the Nassau County Planning Commission, in accordance with §§ 239-l and 239-m of the General Municipal Law.

(6) Every decision of the Board of Appeals shall be recorded in accordance with standard forms adopted by the Board. Every decision of said Board shall be filed by case number. In each case, the Board of Appeals shall notify the DBD, City Clerk, the Planning Board and the Nassau County Planning Commission of their decision.

[Amended 8-24-2010; 2-23-2016 by L.L. No. 1-2016]

(a) The Board of Appeals may render its decision in summary format, setting forth the Board’s decision and conditions imposed, if any, without enumerating detailed findings which formed the basis for its determination. Any person aggrieved by a decision of the Board of Appeals may, within 30 days after filing of the summary decision in the office of the City Clerk, file a written demand with the City Clerk, demanding that the Board of Appeals adopt and file a long form decision. The City Clerk shall deliver this demand to the Chairman of the Board of Appeals, who shall cause the Board of Appeals to adopt and file a long form decision with the City Clerk. Such long form decision shall fully set forth the circumstances of the case, shall contain a full record of the findings on which the decision is based, and, if such decision is not in accordance with any recommendation of the Planning Board, shall state the reasons therefor. If any aggrieved person seeks judicial review without having requested a long form decision, the Chairman or a member of the Board of Appeals may submit the Board's findings by affidavit as part of the Board's court pleadings. The Board may also adopt a long form decision to include with its papers in opposition to the petition.

(b) The date of filing of the Board of Appeals' decision in summary format with the City Clerk shall be deemed the date of the filing of the Board’s decision for all purposes, except when a timely written demand is made for the long form decision. In those cases, the date of filing of the findings statement with the City Clerk shall be deemed the date of filing of the decision of the Board of Appeals for all purposes, including any action commenced under Article 78 of the New York State Civil Practice Law and Rules.

(7) The Board shall keep minutes of its proceedings showing the vote of each member upon every question, or if absent or failing to vote, indicating such fact. The Board shall keep records of its examinations and official actions, all of which shall be immediately filed in the office of the City Clerk and shall be a public record.

(8) All provisions of this chapter relating to the Board of Appeals shall be strictly construed. Such Board, as a body of limited jurisdiction, shall act in full conformity with all provisions of law and of this chapter and in compliance with all limitations contained therein.

(9) Unless construction is diligently pursued within one year of the date of the granting of a variance, such variance shall become null and void, unless renewed upon application to the Board of Appeals.

(10) The Board of Appeals shall also report to the City Council periodically at intervals of not more than six months, summarizing all applications and appeals made to it since its last previous report and summarizing its decisions on such applications and appeals. A copy of such report shall be filed with the Secretary to the Planning Board and with the DBD at the same time it is filed with the City Council.

[Amended 8-24-2010]

(11) All decisions of the Board of Appeals are subject to court review by certiorari in accordance with §81-c of the General City Law and the time frames of subsection (C)(6) above.

[Amended 2-23-2016 by L.L. No. 1-2016]

(12) The Board of Appeals may revoke any variance granted under this chapter in any case where there has been any false statement or misrepresentation of material fact in the application or in the public hearing on which the granting of the variance or special use permit was based.