A.
A Board of Appeals is hereby created. The Board of
Trustees shall appoint five members of such Board of Appeals, each
of whom shall serve for a term of three years, except that at the
time of the first appointment upon the formation of such Board of
Appeals, two shall be appointed for a period of three years, two shall
be appointed for a period of two years and one shall be appointed
for a period of one year. The Board of Appeals shall hear and decide
appeals from and review any order, requirement, decision or determination
made by an administrative officer or board charged with the enforcement
of this chapter or any other provisions of this Municipal Code if
so provided. It shall also hear and decide all matters referred to
it or upon which it is required to pass under this chapter or the
Village Law of the State of New York. Such Board of Appeals shall
have all the rights, powers and duties now granted to or imposed upon
it by the Village Law of the State of New York.[1]
[Amended 10-15-2007 by L.L. No. 13-2007]
(1)
Declaration of policy. It is sometimes difficult to maintain a quorum on the Board of Appeals because members are ill, on extended vacation or find they have a conflict of interest situation on a specific matter before such Board. In such instances, official business cannot be conducted which may delay or impede adherence to required timelines. The use of an alternate member in such instances is hereby authorized pursuant to the provisions of Subsection A(1), (2) and (3).
(2)
Authorization; effect.
(a)
The Village Board of Trustees of the Village of Williston Park hereby enacts Subsection A(1), (2) and (3) to provide a process for appointing alternate members to Board of Appeals. These individuals would serve when members are absent or unable to participate on an application or matter before the Board.
(b)
Alternate members of the Board of Appeals shall
be appointed by the Village Mayor or other duly authorized appointing
authority, for a term of three years.
(c)
The chairperson of the Board of Appeals may
designate an alternate to substitute for a member when such member
is unable to participate on an application or matter before the Board.
When so designated, the alternate member shall possess all the powers
and responsibilities of such member of the Board. Such designation
shall be entered into the minutes of the initial Board of Appeals
meeting at which the substitution is made.
(d)
All provisions of state law relating to zoning
board of appeals member eligibility, vacancy in office, removal, compatibility
of office and service on other boards, as well as any provisions of
a local law relating to training, continuing education, compensation
and attendance, shall also apply to alternate members. Specifically,
Article 7, § 7-712 of New York Village Law provides that,
"the village board of trustees may require board of appeals members
to complete training and continuing education courses in accordance
with any local requirements for the training of such members."
(3)
Supersession of Town/General City/Village Law. Subsection A(1), (2) and (3) is hereby adopted pursuant to the provisions of § 10 of the Municipal Home Rule Law and § 10 of the Statute of Local Governments. It is the intent of the Village Board of Trustees pursuant to § 10 of the Municipal Home Rule Law, to supersede the provisions of:
(a)
Section 7-712 of the Village Law relating to
the appointment of members of Village zoning boards of appeal.
[1]
Editor's Note: Local Law No. 3-1992, adopted 5-18-1992, provided as follows: "Paragraph 5 of § 7-712 of the Village Law of the State of New York is hereby superseded in its application to the Village of Williston Park by present Subdivision A of § 30.41 (now § 230-15A) of the Williston Park Municipal Code, which shall continue in full force and effect."
B.
Such Board of Appeals shall, consistent with the Village
Law, determine its own rules and procedure, and all its deliberations,
resolutions and orders shall be in accordance therewith.
C.
The Board of Appeals shall have the power to review
any order or decision of the Building Inspector.
The Board of Appeals may, in a specific case
and after due notice and public hearing and subject to appropriate
conditions and safeguards, determine and vary the application of the
regulations of this chapter in harmony with their general purpose
and intent, and in accordance with the standards as herein provided,
without limiting the foregoing, the powers of said Board of Appeals
shall also include the following:
A.
Interpretation. Upon appeal from a decision by an
administrative official, the Board of Appeals shall have the power
to decide any question involving the interpretation of any provision
of this chapter, including determination of the exact location of
any district boundary if there is uncertainty with respect thereto.
B.
Variances.[1]
[Amended 7-19-1999 by L.L. 1-1999]
(1)
AREA VARIANCE
USE VARIANCE
As used in this section, the following terms shall
have the meanings indicated:
The authorization by the Board of Appeals for the use of
land in a manner which is not allowed by the dimensional or physical
requirements of this chapter.
The authorization by the Board of Appeals for the use of
land for a purpose which is not otherwise allowed or is prohibited
by this chapter.
(2)
Use variances.
(a)
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.
(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]
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; and
[4]
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.
(3)
Area variances.
(a)
The 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.
(b)
In making its determination, 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 shall also consider whether:
[1]
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]
The benefit sought by the applicant can be achieved
by some method, feasible for the applicant to pursue, other than an
area variance;
[3]
The requested area variance is substantial;
[4]
The proposed variance will have an adverse effect
or impact on the physical or environmental conditions in the neighborhood
or district; and
[5]
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.
[1]
Editor's Note: See also Appendix B, Rules
of Procedure for Variances.
C.
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.[2]
D.
Special exceptions.[3] The Board of Appeals shall have the power to permit, for a period of not more than two years, as a special exception in a residence district, subject to the provisions of Subsection D(1) through (7) below, the maintenance of a second apartment in a one-family detached dwelling. Said special exception permit may be granted only upon compliance with all of the following requirements and conditions:
[Amended 11-20-1989 by L.L. No. 6-1989]
(1)
The submission by the property owner of a verified application, on forms prescribed by the Board of Appeals, for each and every period for which the permit is to be applicable, together with the required nonrefundable application fee as set forth in Chapter 93, Fees, of this Code.
(2)
The dwelling contains a minimum of 600 square feet
of livable floor area in each living unit and not less than 1,200
square feet of livable floor area for both units combined.
(3)
The Board of Appeals finds that there exists a bona
fide financial and/or medical hardship on the part of the owner which
will be alleviated by the granting of the permit. For purposes of
this requirement, the Board may require the production of competent
financial or medical documentation or testimony to substantiate such
hardship.
(4)
The following conditions shall apply to each permit
issued hereunder:
(a)
The Village Building Inspector may inspect the
dwelling at reasonable times to determine whether the use of the premises
subsequent to the grant of the permit is in compliance with the provisions
thereof.
(b)
The Village may assess the premises as a two-family
residence for property tax purposes during the term of the permit.
(c)
The premises shall be occupied by the applicant
as the applicant's primary residence during the term of the permit.
(d)
The granting of the permit for the second apartment
shall not be deemed to change the classification or design of the
premises as a one-family dwelling.
(e)
No structural alterations or additions will
be made to the dwelling during the term of the permit, other than
necessary repairs and maintenance.
(f)
No separate or additional means of access or
entry to/from the second apartment, other than that which exists at
the time of application, shall be permitted without the express approval
of the Board of Appeals.
(g)
Any kitchen facilities contained in the second
apartment shall be removed upon expiration of the permit.
(h)
A restrictive covenant shall be executed by
the applicant and submitted to the Village for filing with the Nassau
County Clerk, at the expense of the applicant, setting forth the terms
and conditions of the permit.
(i)
The Board, in granting the permit, may impose
such additional, reasonable and appropriate conditions as it may deem
necessary to promote and maintain the health, safety and general welfare
of the community.
(5)
The permit shall be automatically terminated upon
the happening of any of the following events:
(a)
The sale or lease of the premises.
(b)
Any change in use or occupancy of the premises
from that approved by the Board.
(c)
The making of any structural changes in the
premises.
(d)
The failure or refusal of the applicant to allow
inspection of the premises by the Building Inspector.
(e)
The expiration of two years from the date the
permit was issued.
(f)
The violation of any other term or condition
of the permit.
(6)
Any permit issued hereunder may be renewed for additional
periods, each period being not more than two years in length, subject
to the applicant submitting an application de novo for each such renewal
period and personally appearing before the Board.
(7)
The special exception permitted in this Subsection D is limited to the conversion and use of a dwelling existing at the time of the enactment of this chapter. The construction of new two-family dwellings is expressly prohibited.
(8)
No application for a special exception permit shall
be accepted and/or acted upon by the Board for any premises against
which a violation of the State Uniform Fire Prevention and Building
Code or this chapter exists.
[3]
Editor's Note: See also Appendix C, Requirements
for Special Exemption Permit Applications.
The Board of Appeals shall act in strict accordance
with the procedure specified by law and by this chapter. All appeals
and applications made to the Board shall be in writing, on forms prescribed
by the Board. Every appeal or application shall refer to the specific
provision of this chapter involved and shall exactly set forth the
interpretation that is claimed, the use for which the special permit
is sought or the details of the variance that is applied for and the
grounds on which it is claimed that the variance should be granted,
as the case may be.
[Amended 3-20-2012 by L.L. No. 2-2012]
A.
On all
applications to the Board of Appeals and the Board of Trustees, the
applicant shall be liable to the Village Board and shall pay the following
costs which may be incurred by the Village in processing the application:
[Note: See Synagogue v. Roslyn Harbor, 40 N.Y.2d 158 as to limitations
on these fees.]
[Amended 3-20-2023 by L.L. No. 3-2023]
C.
In addition to the filing fees for applications under Chapter 230 to the Board of Appeals or to the Board of Trustees, the Board of Trustees shall from time to time by resolution establish and require deposits to be paid by applicants to these Boards to cover the costs that they are obligated to pay.
D.
Additional
deposits; refunds.
(1)
Additional deposit. In the event that the amount of deposit required for an application under Chapter 230 is insufficient to cover the costs as set forth in Subsection A of this section, then the applicant shall, at such time as may be fixed by the applicable board or administrative official, as the case may be, deposit with the Village an amount sufficient to defray the additional costs.
(2)
Refund
of unused deposit. In the event that the amount of the deposit shall
exceed said cost at the conclusion of the particular application,
the unused portion of the deposit shall be returned to the applicant,
provided that the applicant shall, within six months thereof, file
with the Village Clerk a written demand for such refund. All unclaimed
deposits shall become the property of the Village after a six-month
period.
Every decision of the Board of Appeals shall
be by resolution, each of which shall contain a full record of the
findings of the Board of Appeals in the particular case. Each such
resolution shall be filed in the office of the Village Clerk by case
number and under one or another of the following headings: interpretations,
special permits or variances, together with all documents pertaining
thereto. The Board of Appeals shall notify the Board of Trustees of
each special permit and each variance granted under the provisions
of this chapter.
A.
Review. Wherever under the provisions of this chapter
or the Village Law of the State of New York the Board of Appeals is
required to review any order, requirement, decision or determination
made by an administrative official charged with the enforcement of
this chapter or whenever it is required to hear and decide any matters
referred to it upon which said Board may be required to pass and upon
any and all other matters where its approval, consent or permit is
required, the Board, in its consideration and determination, shall
confine itself to the purposes expressed in the Village Law and in
this chapter, namely, that such chapter is enacted for the purpose
of promoting the health, safety, morals and the general welfare of
the community.
B.
Appeals. In all matters where appeal is made to said
Board for relief from the strict letter of this chapter, the Board
of Appeals shall determine and vary the application of the provisions
of this chapter in harmony with the general purpose and intent of
the sections of the Village Law of the State of New York relating
to zoning of villages. The determination of the Board shall be made
in accordance with the provisions of the Village Law concerning a
Comprehensive Plan and design set forth in said Village Law and in
this chapter to lessen congestion of the streets; to secure safety
from fire, panic and other dangers; to promote health and the general
welfare; to provide adequate light and air; to prevent the overcrowding
of land; to avoid undue concentration of population; and to facilitate
the adequate provision of transportation, water, sewerage, schools,
parks and other public requirements.
C.
Factors to be considered. The deliberations and determinations
of said Board shall be made with reasonable consideration, among other
things, as to:
(1)
The character of the district.
(2)
Its particular suitability for particular uses.
(3)
The conservation of property values.
(4)
Encouraging the most appropriate use of land throughout
the Village of Williston Park.
(5)
The direction of building development.
(6)
That the practical difficulty or unnecessary hardship
is created by this chapter and not by the act of the applicant.
(7)
That such difficulty is not common to others in the
neighborhood or district.
[Added 6-20-1977 by L.L. No. 6-1977]
A.
No variance, building permit, special exception permit
or any other grant or permit granted by the Board of Trustees, Board
of Appeals or other agent or body of the Village shall be effective
for more than one year after the date of its issuance or the date
of the decision granting the application (whichever first occurs)
unless the grantee or applicant of that request shall have completed
or substantially completed the entire task, activity or use contemplated
by the application within that time. The foregoing one-year expiration
period may be waived by the issuing body but only if it expressly
states such a waiver and recites, specifically, that this section
shall not apply.
B.
Nothing contained herein is intended to modify or
abrogate any or all laws, whether statutory or by common law, pertaining
to the lapse or abandonment of a granted application. This section
is intended to ensure good faith and expeditious performance of a
task, activity or use permitted by the Village upon the granting of
an appropriate application.
