Village of Stewart Manor, NY Board of Zoning Appeals

[Amended 5-5-2009 by L.L. No. 13-2009]

Organization and membership.

There shall be a Zoning Board of Appeals in accordance with the provisions of the Village Law of the State of New York. Said Board shall consist of five members and shall be appointed as provided by statute.

(2)

In order to assist the Zoning Board of Appeals in the conduct of its official business when a member is unable to attend a meeting or voluntarily withdraws from acting on a particular matter, the position of alternate member is hereby created. An alternate member shall be appointed by the Mayor subject to the approval of the Board of Trustees for a term of one year. In the absence of a member, the chairperson of the Zoning Board of Appeals shall designate the alternate member to serve and the alternate member shall thereupon possess all of the powers and responsibilities of the member who is replaced. By authorizing the appointment of an alternate member to the Zoning Board of Appeals, it is the intent of the Board of Trustees of the Village to supersede the provisions of § 7-712 of the Village Law relating to the appointment of Village zoning boards of appeal.

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

(1)

Interpretation: upon appeal from a decision by an administrative official, 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.

(2)

Variances.

(a)

Use variances.

[1]

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

[2]

"Use variance" shall mean the authorization by the Zoning Board of Appeals for the use of land for a purpose which is otherwise not allowed or is prohibited by the applicable zoning regulations.

[3]

No such use variance shall be granted by a Zoning 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 Zoning 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 the lack of return is substantial as demonstrated by competent 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.

[4]

The Zoning 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]

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 local law, to grant area variances as defined herein.

[2]

"Area variance" shall mean the authorization by the Zoning Board of Appeals for the use of land in a manner which is not allowed by the dimensional or physical requirements of the applicable zoning regulations.

[3]

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 Zoning Board of Appeals, but shall not necessarily preclude the granting of the area variance.

[4]

The Zoning 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)

Conditions, expiration, extinguishment and revocation.

[1]

Imposition of conditions. The Zoning 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 the Zoning Local Law, and shall be imposed for the purpose of minimizing any adverse impact such variance may have on the neighborhood or community.

[2]

Expiration, lapse, extension and reinstatement of variance. Any variance granted pursuant to this chapter shall automatically expire and be of no further force and effect six months after the granting thereof unless, within such six-month period, substantial construction shall have been commenced. Such construction must be completed within one year of the date of commencement of substantial construction. If construction is not completed within the one-year period, the variance shall automatically expire and be of no further force and effect. The Zoning Board of Appeals shall be authorized, upon application and without hearing, to grant extensions of the variance for periods not to exceed six months in duration or to reinstate a lapsed variance for good cause shown. Any variance issued prior to the effective date of this section shall be deemed to have been issued on such effective date.

[3]

Extinguishment of variance. Whenever a use established pursuant to a variance shall have been abandoned for a term of six months, or whenever the location of such use is substantially destroyed, the land, building or structure in which said use shall have existed shall not thereafter be used for the previously established use. Such six-month period of abandonment may be discontinued only by 30 or more consecutive business days of operation. A structure shall be substantially destroyed if the cost to repair and replace the said structure exceeds 50% of the current structural replacement value thereof.

[4]

Revocation of variance. Any variance granted pursuant to this chapter shall be revocable on the order of the Zoning Board of Appeals at any time upon the failure of the owner or the operator of the use or structure covered by the variance to observe all requirements of this chapter with respect to the maintenance and conduct of the use or structure or upon failure to observe all conditions in connection with such variance which were designated by the Zoning Board of Appeals issuing the same. Prior to revoking any such variance, the Zoning Board of Appeals shall give the holder of the variance at least 10 days' written notice of violation. If within such 10 days the variance holder so requests, the Zoning Board of Appeals shall hold a hearing on the revocation of such variance and shall give the applicant for the hearing at least 10 days' written notice thereof either by certified mail, return receipt requested, or by personal service. The foregoing provisions shall not be deemed to preclude the use of any other remedy prescribed by law or by this chapter or of any conditions of the variance. The violation of any condition imposed by the Zoning Board of Appeals as part of a variance shall constitute a violation of this chapter.

Procedure.

(1)

All appeals and applications made to the Board of Appeals shall be in writing on forms prescribed by the Board. Each appeal or application shall fully set forth the circumstances of the case. It shall refer to the specific provision of this chapter that is involved and shall exactly set forth, as the case may be, the interpretation that is claimed on an allegation of error or the variance that is applied for and the grounds on which it is claimed that the same should be granted. The Clerk of the Board shall not receive nor shall the Board consider any appeal or application that does not fully contain the information required herein.

(2)

Any further proposal by the applicant or appellant in respect to either any addition to or modification of the content of the proposal covered by the application or appeal or any offer made in connection therewith shall be made only in the form of an amended application or appeal. The filing of any such amended application or appeal shall terminate all proceedings on the original application or appeal and shall require the holding of a new hearing, of which notice shall be given as in the first instance.

(3)

Meetings, minutes, records. Meetings of such Zoning Board of Appeals shall be open to the public to the extent provided in Article VII of the Public Officers Law. Such Zoning Board of Appeals 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, and shall also keep records of its examinations and other official actions.

(4)

Filing requirements. Every rule, regulation, every amendment or repeal thereof, and every order, requirement, decision or determination of the Zoning Board of Appeals shall be filed in the office of the Village Clerk within five business days and shall be a public record.

(5)

Assistance to Zoning Board of Appeals. Such Board shall have the authority to call upon any department, agency or employee of the Village for such assistance as shall be deemed necessary and as shall be authorized by the Village Board of Trustees. Such department, agency or employee shall be reimbursed by the applicant or appellant for any expenses incurred as a result of such assistance.

(6)

Hearing appeals. Unless otherwise provided by local law, the jurisdiction of the Zoning Board of Appeals shall be appellate only and shall be limited to hearing and deciding appeals from and reviewing any order, requirement, decision, interpretation, or determination made by the administrative official charged with the enforcement of any local law adopted pursuant to this chapter. The concurring vote of a majority of the members of the Zoning Board of Appeals shall be necessary to reverse any order, requirement, decision or determination of any such administrative official, or to grant a use variance or area variance. Such appeal may be taken by any person aggrieved, or by an officer, department, board or bureau of the Village other than the Board of Trustees.

(7)

Time of appeal. Such appeal shall be taken within 60 days after the filing of any order, requirement, decision, interpretation or determination of the administrative official charged with the enforcement of such local law by filing with such administrative official and with the Zoning Board of Appeals a notice of appeal, specifying the grounds thereof and the relief sought. The administrative official from whom the appeal is taken shall forthwith transmit to the Zoning Board of Appeals all the papers constituting the record upon which the action appealed from was taken.

(8)

The applicant or appellant shall be required to provide notice of the hearing upon a form approved by the Zoning Board of Appeals to all record landowners within a one-hundred-foot radius of the property which forms the subject of the appeal or application as said record owners appear on the most current tax rolls of the Nassau County Assessor's Office. Such notice shall be sent to the record landowners by certified mail, return receipt requested, not less than 15 days before the public hearing. Evidence of compliance with this section shall be provided by the appellant or applicant prior to or at the public hearing. In addition, the Secretary of the Zoning Board of Appeals shall publish notice of the hearing not less than 10 days prior to the hearing date.

(9)

Stay upon appeal. An appeal shall stay all proceedings in furtherance of the action appealed from, unless the administrative official charged with the enforcement of such local law, from whom the appeal is taken, certifies to the Zoning Board of Appeals, after the notice of appeal shall have been filed with the administrative official, 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 be granted by the Zoning Board of Appeals or by a court of record on application, on notice to the administrative official from whom the appeal is taken and on due cause shown. Any continued, new or additional construction shall be deemed to cause imminent peril to life or property.

(10)

Time of decision. The Zoning Board of Appeals shall decide upon the appeal within 65 days after the conduct of said hearing. The time within which the Zoning Board of Appeals must render its decision may be extended by mutual consent of the applicant and the Board.

(11)

Filing of decision and notice. The decision of the Zoning 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.

(12)

Rehearing. A motion for the Zoning Board of Appeals to hold a rehearing to review any order, decision or determination of the Board not previously reviewed 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 of the Zoning Board of Appeals, provided that the Board finds that the rights vested in persons acting in good faith in reliance upon the reviewed order, decision or determination will not be prejudiced thereby.

(13)

Reimbursable expenses. No variance shall be issued pursuant to the provisions of this article until all expenses incurred by the Zoning Board of Appeals for consultation fees (including engineering, architectural and legal) or other extraordinary expenses in connection with the review of the application are reimbursed to the Village by the applicant. At the time of application, the applicant shall deposit with the Village Clerk such amount to cover consultation fees and extraordinary expenses as shall be established, from time to time, by resolution of the Zoning Board of Appeals. In instances where such expenses are minimal, the requirement for reimbursement of expenses may be waived by resolution of the Zoning Board of Appeals.

(14)

Fees. In every case, matter, appeal or application brought before the Zoning Board of Appeals for determination or action, the applicant shall be required to pay the fees as set forth in the current Village Fee Schedule. The payment of any fee or deposit in connection with the application shall be a condition precedent to the acceptance of the application.

[1]

Editor's Note: Former § 200-62, Fees, was repealed 5-5-2009 by L.L. No. 5-2009.

[1]

Editor's Note: Former § 200-63, Granting of variances, was repealed 5-5-2009 by L.L. No. 6-2009.

[1]

Editor's Note: Former § 200-64, Time limit on obtaining building permit after grant of variance, as amended, was repealed 5-5-2009 by L.L. No. 7-2009.