A.
Establishment. There shall be a Board of Appeals of
five members pursuant to the applicable provisions of the Village
Law of the State of New York.
B.
Appointment and term of office. The Mayor shall appoint
the Board of Appeals and the Chairperson thereof, subject to the approval
of the Board of Trustees. The Mayor shall have the power to remove,
after public hearing, any member of the Zoning Board of Appeals for
cause. If a vacancy shall occur otherwise than by expiration of term,
the Mayor shall appoint the new member for the unexpired term. At
the expiration of each original member's appointment, the replacement
member shall be appointed by the Board of Trustees for a term which
shall be equal in years to the number of members of the Board.
[Amended 4-11-2001 by L.L. No. 3-2001]
C.
BOARD
Definitions. For the purposes of this article, the
following terms shall have the meanings indicated:
The duly appointed Zoning Board of Appeals of the Village
of Harriman.
D.
Membership. The Board officers shall consist of a
Chairman, Deputy Chairman, Secretary and Attorney.
E.
Chairman. The Chairman shall be designated by the
Village Board. He shall perform all the duties required by law, ordinance
and this article. He shall preside at all the meetings of the Board.
The Chairman may appoint any committees necessary to carry out the
business of the Board. The Chairman may administer oaths and compel
the attendance of any witness necessary to carry out the business
of the Board. The Chairman's signature shall be the official signature
of the Board.
F.
Deputy Chairman. The Chairman may designate either
of the four members as Deputy Chairman to serve in the absence of
the Chairman. The Deputy Chairman shall have all the powers of the
Chairman in his absence, disability or disqualification.
G.
Secretary. The Secretary shall be appointed by the
Board. The Secretary is not a member of the Board. The Secretary shall
keep minutes of all Board meetings and proceedings, keep a record
of those members of the Board present and record the vote of each
member. In the absence of the Secretary, the Chairman may request
either member of the Board to assume the Secretary's duties.
H.
Attorney. The Attorney for the Board is not a member
of the Board. The Attorney shall render such professional services
and advice as the Board may require. In the event that the Attorney
shall disqualify himself in any proceeding before the Board because
of a conflict of interest or otherwise, the Chairman may, in the discretion
of the Board, request from the Village Board an attorney to render
services and advice in such proceedings. The presence of the Attorney
is not necessary to the full conduct of hearings, proceedings or decisions.
A.
The regular meeting of the Board shall be held on
the first Wednesday of the month at 7:30 p.m. in the Village Hall.
The Chairman may schedule such special meetings at specified times
or locations as may be deemed necessary to the conduct of the business
of the Board. No meeting of the Chairman and members is necessary
if no business is before the Board. The Chairman will instruct the
Secretary to make the appropriate entries to the minutes.
[Amended 10-10-2006 by L.L. No. 5-2006]
B.
A quorum shall consist of at least three members of
the Board. No meeting, proceeding or hearing shall be held nor any
decision or action taken in the absence of a quorum. Any meeting,
hearing or proceeding attended by less than a quorum will be rescheduled
to the next regularly scheduled Board meeting date or to a special
date as designated by the Chairman. All hearings subsequently scheduled
will be readvertised in accordance with the requirements of applicable
law.
C.
All matters shall be decided by a roll call vote.
Decisions on any matter before the Board shall require the affirmative
vote of a majority of the Board. No member shall vote on the determination
of any matter requiring a public hearing unless he has attended the
public hearing(s) thereon. A tie vote of the Board shall mean the
rejection or denial of the appeal or application under consideration.
A.
The Board of Appeals shall perform all the duties
and have all the powers prescribed in Article 7 of the Village Law
of the State of New York and as herein more particularly provided.
However, none of the following provisions shall be deemed to limit
any power of the Board that is conferred by law.
B.
On appeal from an order, requirement, decision or
determination made by an administrative official or on request by
any official, board or agency of the Village, the Board of Appeals
is hereby authorized to decide any of the following questions:
A.
Filing of appeals. An appeal shall be taken within
60 days of the action of the administrative official appealed from.
Any appeal not so taken shall not be entertained by the Board. An
appeal shall be taken by filing with the Chairman and the official
from whom the appeal is taken a notice of appeal. Said notice of appeal
shall identify the administrative official appealed from and the date
of the action. Appeals may also be taken without prior administrative
action as for interpretation or variance from existing law or any
matter for which the appellant may wish to obtain an interpretation
or decision by the Board. The officer from whom the appeal is taken
shall forthwith transmit to the Chairman all papers, documents or
other material constituting the record upon which the action appealed
from was taken. Copies of documents will be acceptable at the discretion
of the Chairman.
[Amended 4-11-2001 by L.L. No. 3-2001]
B.
Notice of appeal. Notice of appeal shall be filed with the Village Clerk within the period prescribed in Subsection A. Such service upon the Village Clerk shall be deemed proper service upon the Board of Appeals and the administrative official from whom the appeal is taken, if any. The Village Clerk shall immediately forward the notice of appeal to the Chairman and a copy to the administrative official. The Chairman shall distribute the record of appeal to the Attorney and Board members. No appeal shall be heard unless the record of appeal is furnished to the Chairman within the time prescribed.
C.
Contents of record of appeal.
(1)
The record of appeal shall consist of the following
material in regard to the following matter:
(a)
Appeals regarding any yard, court or area requirement
of the Zoning Law of the Village of Harriman:
[1]
A copy of the letter, opinion, decision or requirement
or ruling appealed from.
[2]
A written executed petition stating in detail
all the pertinent facts relating to the appeal, including the date
of construction of any building located on the subject property, and
stating the grounds for the appeal.
[3]
A plot plan, survey or diagram of the subject
premises accurately showing the dimensions of all actual or proposed
structures on the subject premises, the distances of all actual or
proposed side yards, rear yards, front yards, courts, driveways, abutting
streets and, except for appeals involving court areas or locations,
the distance from the side and rear lot lines to existing structures,
if any, on adjoining properties closer than 300 feet to said lot lines.
If such an appeal is based upon practical difficulties arising out
of topographical conditions, such as differences in elevation, streams
or outcropping of rocks or the like, the plot plan or survey should
sufficiently indicate the nature and extent of said conditions.
(b)
Appeals regarding any use requirements of the
Zoning Law of the Village of Harriman:
[1]
A copy of the letter, opinion, decision or requirement
appealed from.
[2]
A written executed petition stating in detail
all the pertinent facts relating to the appeal, including the date
of acquisition of the subject property by the appellant or his principal,
and stating the grounds therefor.
[3]
A diagram identifying the property upon which
the use will be located and the types and number of uses if any, within
a one-thousand-foot radius of the proposed use.
(c)
Appeals from the requirements of § 7-736
of the Village Law:
[1]
A copy of the letter, opinion, decision or requirement
or ruling appealed from.
[2]
A written executed petition stating in detail
all the pertinent facts relating to the appeal and stating the grounds
therefor.
[3]
A plot plan, survey or diagram showing accurately
the size of the subject property, the location of the proposed structure
thereon, the amount of frontage on any abutting road, the distance
of the proposed structure from any abutting street or highway, if
the property does not abut a state, county or town highway, and the
dimensions, locations and type of access to the property from the
nearest state, county or town highway.
(d)
Applications on any matter referred to it or upon which it has power to act under the Village of Harriman Zoning Law not covered by Subsection C(1)(a) or (b) of this section:
[1]
A copy of the letter, opinion, decision, requirement
or ruling appealed from, if any.
[2]
A written executed petition stating in detail
all pertinent facts relating to the appeal or application and the
grounds or reasons for the appeal.
[3]
Any other information or data that the Board
may reasonably require after the public hearing.
(2)
Any record of appeal may be supplemented by a memorandum
of law or any other information or data the applicant feels may support
or explain the appeal.
D.
Waivers and modifications authorized. The Board, upon good cause, may modify or waive any or all of the requirements of Subsection C.
E.
Additional information. The Board may require any
additional information it deems necessary to act upon any appeal or
application before or after the public hearing thereon.
F.
A filing fee, pursuant to Village of Harriman Code § 74-5C and escrow deposit in accordance with § 74-5G, as determined by resolution of the Village of Board of Trustees, shall be deposited at the time of the filing of the notice of appeal or application for hearing. In addition to the filing fee, each applicant shalt deposit sufficient funds to defray the Board's legal costs, publication costs, engineering fees and other expenses in accordance with § 74-5G, connected with the review for each nonresidential application, with the exception of variances, permitted accessory uses, interpretations or appeals filed with respect to parcels improved by a one- or two-family residence. Upon depletion of the deposit, the applicant shall be required to remit such additional funds as may be reasonably required to defray such expenses as determined by resolution of the Zoning Board.
[Amended 10-12-2004 by L.L. No. 6-2004; 9-9-2014 by L.L. No. 5-2014]
A.
Time of hearings. After filing of the notice of appeal
with the Chairman, the Chairman shall schedule a hearing thereon within
60 days of such filing. Hearings will be held at the regular meetings
of the Board or at such special date, time and place designated by
the Board.
B.
Notice of hearing. The Board shall give notice of
hearing. The notice of hearing shall state the location of the building
or property involved, the name of the appellant, the general nature
of the question involved, the nature of the relief sought and any
other additional information deemed pertinent by the Board.
C.
Publication of notice of hearing.
(1)
The Board of Appeals shall publish in the official
newspaper of the Village of Harriman and any other newspaper it may
deem necessary the notice of hearing at least five days before the
scheduled date of the hearing. For the purpose of this subsection,
the hearing date shall be counted as the fifth day.
[Amended 4-11-2001 by L.L. No. 3-2001]
(2)
Copies of the notice of hearing shall also be mailed
to the appellant and any property owner or interested party the Board
of Appeals deems necessary. Copies will be given to the Zoning Board
of Appeals Secretary, who will display one copy in an appropriate
space in the Village Hall visible to the general public and distribute
copies to the Village Trustees and Village Planning Board. One copy
will be mailed to the administrative official from whom the appeal
was taken.
[Amended 11-10-2015 by L.L. No. 5-2015]
(3)
The notices required by this subsection shall be issued
by the Secretary of the Board of Appeals on order of the Board of
Appeals or upon order of the Chairman of said Board if the appeal
or application is received when the Board is not in session and the
Chairman deems it necessary or desirable to expedite the public hearing
of such appeal or application.
(4)
Provided that due notice shall have been published
as provided herein and that there shall have been substantial compliance
with the remaining provisions of this subsection, 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, permit or variance.
A.
County Planning Agency. Where the land involved in
any application for a variance or special permit lies within 500 feet
of any existing or proposed county or state park or other recreation
area; right-of-way of any existing or proposed county or state parkway,
thruway, expressway, road or highway; existing or proposed right-of-way
of any stream or drainage channel owned by the county or for which
the county has established channel lines; or existing or proposed
boundary of any county- or state-owned land on which a public building
or institution is situated, such application, accompanied with the
notice of the public hearing, shall be forwarded by the Secretary
of the Board of Appeals to the Orange County Planning Department for
review in accordance with the provisions of §§ 239-l
and 239-m of Article 12-B of the General Municipal Law of the State
of New York at least 10 days prior to the public hearing. No action
shall be taken by the Board of Appeals on such application until the
Department's recommendation has been received or 30 days have elapsed
after the Department received the full statement of the applicant's
proposal.
B.
Other municipalities. If the land involved in an appeal
or application lies within 500 feet of the boundary of any other municipality,
the Secretary of the Board of Appeals shall also transmit to the Municipal
Clerk of such other municipality a copy of the official notice of
the public hearing thereof at least 10 days prior to the public hearing.
C.
Other agencies. At least 10 days prior to the 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.
A.
Use variances.
[Amended 4-11-2001 by L.L. No. 3-2001]
(1)
The Board of Appeals, on appeal from the decision
or determination of the administrative officer charged with the enforcement
of this chapter, shall have the power to grant use variances, as defined
herein.
(2)
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 the property
is located:
(a)
The applicant cannot realize a reasonable return,
provided that lack of return is substantial as demonstrated by complete
financial evidence;
(b)
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;
(c)
That the requested use variance, if granted,
will not alter the essential character of the neighborhood; and
(d)
That the alleged hardship has not been self-created.
(3)
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.
B.
Area variances.[1]
(1)
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 this chapter, to grant area
variances as defined herein.
(2)
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:
(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; and
(e)
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.
(3)
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.
The needs or desires of a particular owner or tenant
or of a particular prospective owner or tenant shall not, either alone
or in conjunction with other factors, afford any basis for the granting
of a variance. The fact that the improvements already existing at
the time of the application are old, obsolete, outmoded or in disrepair
or the fact that the property is then unimproved shall not be deemed
to make the plight of the property unique or to contribute thereto.
D.
Where the Board finds the zoning classification of
a particular property to be conducive to the deprivation of the reasonable
use of the land or building by the owner thereof and where the Board
deems the same condition to apply generally to other land or buildings
in the same neighborhood or district, the Board may call this condition
to the attention of the Planning Board.
E.
In all cases where the Board of Appeals grants a variance
from the strict application of the requirements of this chapter, it
shall be the duty of such Board to attach conditions and safeguards
as may be required in order that the result of its action may be as
nearly as possible in accordance with the spirit and intent of this
chapter.
F.
Unless construction is commenced and diligently prosecuted
within six months of the date of the granting of a variance, such
variance shall become null and void.
A.
Time and form. Decisions by the Board shall be made
within 62 days of the date of the final hearing. The final decision
on any matter before the Board shall be made in a written order signed
by the Chairman.
B.
Filing. Decisions of the Board of Appeals on the appeal shall be filed in the office of the Village Clerk within five business days after the day such decision is rendered, and a copy thereof mailed to the applicant. The date of filing of each decision shall be entered in the official records of the Board. Copies of the decision shall be rendered to the appellant, the Village Clerk and the Clerk of any affected municipality given notice of hearing as set forth in § 140-53B.[1]
All the provisions of this chapter relating
to the Board of Appeals shall be strictly construed. The Board, as
a body of limited jurisdiction, shall act in full conformity with
all provisions of law and of this chapter and in strict compliance
with all limitations contained therein; provided, however, that if
the procedural requirements set forth in this chapter have been substantially
observed, no applicant or appellant shall be deprived of the right
of application of appeal.
Appeal from a decision of the Board of Appeals
may be made to the Supreme Court within 30 days after the filing of
decisions made by the Board of Appeals with the Village Clerk.
