A Board of Appeals, as heretofore established by the Village
Board, is hereby continued and maintained.
The Board of Appeals shall have all the powers, duties and authority
vested in it by the Village Law of the State of New York and by this
chapter, including but not limited to the power to adopt from time
to time such rules of procedure, not inconsistent with law, as it
may determine to be necessary.
On appeal from an order, requirement, decision or determination made by an administrative official, the Board of Appeals shall decide any question involving the interpretation of any provision of this chapter, including determination of the exact location of any district boundary line, if uncertainty remains after reference to the rules specified in §§ 128-6 through 128-9 hereof.
[Amended 3-21-2006 by L.L. No. 2-2006]
Where the strict application of any of the requirements of this
chapter to the case of an exceptionally irregular, narrow, shallow
or steep lot or other exceptional physical condition would result
in practical difficulty or unnecessary hardship which would deprive
the owner of the reasonable use of the land or the building involved,
the Board of Appeals shall have the power, upon appeal, to vary or
adjust the strict application of the regulations or provisions of
this chapter.
A.
Use variances.
(1)
The 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)
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 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.
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)
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.
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 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.
In all cases where the Board of Appeals authorizes the issuance
of a building permit, certificates of occupancy or use permit under
any of the above powers, it shall be the duty of said Board to attach
such conditions and safeguards as may be required to protect the public
health, safety, morals and general welfare and to ensure continual
compliance to these regulations.
A.
All appeals and applications to the Board of Appeals shall be taken
in the manner prescribed by law and within such time as shall be prescribed
by the Board of Appeals by general rule.
(1)
All such appeals and applications shall be in writing on such forms
as may be required by the Board of Appeals.
(2)
Each appeal or application shall fully set forth the circumstances
of the case.
(3)
Every appeal or application shall refer to the specific provision
of the chapter involved and shall exactly set forth, as the case may
be, the interpretation that is claimed, the details of the adjustment
that is applied for and the grounds for which it is claimed that the
same should be granted or the use for which a special permit is sought.
B.
Every decision of the Board of Appeals shall fully set forth the
circumstances of the case and the findings on which the decision was
based.
[Amended 9-20-1979 by L.L. No. 3-1979; 1-15-1981 by L.L. No.
1-1981; 2-17-1983 by L.L. No. 1-1983; 9-18-1990 by L.L. No.
3-1990; 9-17-2002 by L.L. No. 3-2002]
Any person, other than the Village of Nissequogue, making any
application to the Board of Appeals under the provisions of this chapter
shall pay a fee upon each application filed to defray the cost of
advertising and conducting the hearing and shall pay the cost of any
required stenographic services. Such fee shall be established by resolution
of the Board of Trustees, and a current schedule of such fees shall
be maintained by the Village Clerk.
