Village of Buchanan, NY Article IX Appeals

§ 211-38 Board of Appeals.

A. Organization and procedure.

(1) Establishment. Pursuant to § 7-712 of the Village Law, a Board of Appeals is hereby established for the Village of Buchanan.

(2) Appointment. The Board of Appeals shall consist of five members who shall be appointed in accordance with § 7-712 of Village Law. The term of each appointment shall be five years. The members of the Board shall receive compensation for their services, as approved by the Board of Trustees.

(3) Appointment to fill vacancies. Appointments to fill vacancies shall be for the unexpired term of the member or members whose term or terms become vacant. Such appointments to fill such vacancies shall be made in the same manner as the original appointment.

(4) General grant of power. The Board of Appeals shall perform all the duties and have all the powers prescribed by the laws of the State of New York and as herein described.

(5) Rules of procedures.

(a) The Board of Appeals shall adopt rules in accordance with the provisions of this chapter and any others not inconsistent herewith or with the laws of the State of New York.

(b) There shall be a Chairman appointed by the Mayor for a period of one year, and the Board may elect such other officers or may employ such help as may be necessary and authorized within the appropriations therefor. All meetings of the Board shall be public. The presence of three members shall be necessary for a quorum. The Secretary to 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 that fact. The final disposition of each appeal, request, matter or proceeding shall be in the form of a resolution reversing, modifying or affirming the decision of the Building Inspector or granting or denying any relief sought.

(6) Votes necessary for a decision. The concurring vote of three members of the Board of Appeals shall be necessary to reverse any order, requirement, decision or determination of the Building Inspector, to decide in favor of the applicant any matter upon which it is required to pass, under the terms of this chapter, or to affect any variation in this chapter.

(7) Should any appeal, application for variance or interpretation involve any change in regulations applying to land lying within 500 feet of any municipal boundary; 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 by the notice of public hearing, shall be forwarded to the Westchester County Planning Department for review in accordance with the provisions of the Westchester County Administrative Code. Notice of hearing shall also be sent to the Clerk of any affected municipality, at least 10 days prior to the public hearing. Westchester County Planning Department shall have 30 days in which to recommend approval or disapproval, and no action shall be taken on such application within the statutory referral period. The Board shall not act contrary to the recommendations of the County Planning Department unless by affirmative vote of four members, setting forth fully the reasons for such contrary action.

B. Functions of Board of Appeals.

[Amended 11-6-1989 by L.L. No. 11-1989]

(1) Rules and forms. The Board of Appeals shall adopt and make available to the public such rules and regulations as are necessary and proper to the performance of its powers and duties hereunder and may amend or repeal the same. Such rules shall prescribe the forms to be used in matters over which the Board has jurisdiction.

(2) Powers and duties. On appeal from an order, requirement, decision or determination made by an administrative official charged with the enforcement of this chapter or on referral of an applicant to the Board by an approving agency acting pursuant to this chapter, the Board of Appeals is authorized to:

(a) Vary or modify the strict letter of this chapter where its literal interpretation would cause practical difficulties or unnecessary hardships, in such manner as to observe the spirit of the chapter, secure public safety and welfare and do substantial justice.

(b) Interpret and determine the meaning and requirement of any portion of this chapter or of Chapters 83, 97, 103, 143, 159, 167, 171, 175 and 203 of the Code of the Village of Buchanan.

(c) Determine the exact location of any district boundary shown on the Zoning Map.[1]

[1] Editor's Note: The Zoning Map is included at the end of this chapter.

(3) Referral to Planning Board. The Board of Appeals shall refer to the Planning Board applications or appeals which, in the opinion of the Board of Appeals, require review by the Planning Board. In its review, the Planning Board shall determine compliance with the standards set forth in this chapter and, in all cases, shall report, in writing, its findings and recommendations to the Board of Appeals within 30 days from the date any matter is referred to it by the Board.

(4) Special permits. The Board of Appeals shall hear and determine applications for the special permit uses which require Board of Appeals approval. Said hearing and determination shall be pursuant to the procedure set forth in this chapter.

§ 211-39 Variances.

[Amended 12-15-1986 by L.L. No. 5-1986; 11-6-1989 by L.L. No. 11-1989]

A. Use variances. Where, because of unnecessary hardship relating to the land in question, an applicant desires to utilize said land for a use not allowed in the district in which the land is located, the Board may grant a variance in the application of the provisions of this chapter in the specific case, provided that, as a condition to the grant of any such variance, the Board shall take into consideration whether or not the unnecessary hardship has been created by the owner or his predecessor in title, and the Board shall make each and every one of the following findings:

(1) After considering all permitted uses, that the property in question cannot yield a reasonable return if used only for a purpose allowed in that district.

(2) That the plight of the owner is due to unique circumstances affecting the property which is the subject of the application and is not due to general conditions in the neighborhood.

(3) That the use to be authorized by the variance will not alter the essential character of the locality.

(4) That the use to be authorized by the variance is in reasonable harmony with the intent of this chapter.

(5) That, within the intent and purposes of this chapter, the variance, if granted, is the minimum variance necessary to afford relief. To this end, the Board may permit a lesser variance than that applied for.

(6) No use variance shall be granted permitting a use prohibited by § 211-11 or permitting a use not listed in § 211-10 as a permitted use within the Village of Buchanan.

B. Area variances. Where, because of practical difficulty, an applicant requests a variance of the lot area or other dimensional requirements of this chapter, the Board may grant a variance in the application of the provisions of this chapter in the specific case, provided that as a condition to the grant of any such variance the Board shall make a specific finding that the application of the requirements of this chapter to the land in question creates such practical difficulty. In making this determination, the Board shall take into consideration whether or not the practical difficulty has been created by the owner or his predecessor in title and shall make each and every one of the following findings:

(1) That the variation requested is not substantial in relation to the requirement.

(2) That the effect of any increased population density which may thus be produced upon available services and facilities is not significant.

(3) That a substantial change in the character of the neighborhood or a substantial detriment to adjoining properties will not be created.

(4) That the difficulty cannot be alleviated by some method feasible for the applicant to pursue other than a variance.

(5) That the variation would not cause adverse aesthetic, environmental or ecological impacts on the property or on surrounding areas.

(6) That the requested variance is the minimum variance necessary to afford relief.

(7) That, in view of the manner in which the difficulty arose and considering all of the above factors, the interests of justice will be served by allowing the variance.

C. Conditions and safeguards. The Board of Appeals may prescribe such conditions or restrictions applying to the grant of a variance as it may deem necessary in each specific case, in order to minimize any adverse effects of such variance upon the character and property value of the neighborhood and to protect the public health, safety and welfare. Such conditions or restrictions shall be incorporated in the building permit and certificate of occupancy. Failure to comply with such conditions or restrictions shall constitute a violation of this chapter and may constitute the basis for denial or revocation of a building permit or certificate of occupancy and for all other applicable remedies.

D. Expiration of a variance. A variance granted under this chapter shall automatically expire if substantial construction, in accordance with the plans for which such variance was granted, has not been completed within one year or such other time limit as may be chosen by the Board of Appeals in connection with its decision, from the date of the granting of such variance by the Board or, if judicial proceedings to review the Board's decision shall be instituted, from the date of entry of the final order in such proceedings, including all appeals.

§ 211-40 Appeals from decisions of administrating officials.

[Amended 11-6-1989 by L.L. No. 11-1989]

A. Appeal or application. An appeal or application shall be made within 30 days of the order or decision appealed from, by filing with the official or agency from whom the appeal is taken and with the Board of Appeals a notice of appeal, specifying the ground thereof. The official or agency from whom the appeal is taken shall forthwith transmit to the Board all the papers constituting the record upon which the action appealed from is taken. All such appeals and applications to the Board shall be made by the owner or his duly authorized agent, in writing, and shall be on forms prescribed by the Board. Each appeal or application shall fully set forth the circumstances of the case, shall refer to the specific provisions of this chapter involved and shall exactly set forth, as the case may be, the interpretation that is claimed and details of the adjustment that is applied for and the grounds on which it is claimed that the same should be granted.

B. Information required on appeals to the Board of Appeals. All appeals from a decision of the Building Inspector and applications to the Board of Appeals shall include the following:

(1) The name and address of the applicant or appellant.

(2) The name and address of the owner of the lot or lots to be affected by such proposed change or appeal.

(3) A statement of the present zoning classification of the property in question, the improvement thereon and the present use thereof.

(4) A statement of the section of this chapter under which the appeal is made and reasons why it should be granted or a statement of this chapter governing the situation in which the alleged erroneous ruling is being appealed and the reason for this appeal.

(5) A reasonably accurate description of the present improvements and the additions or changes intended to be made under this application, indicating the size of such proposed improvements, material and general construction thereof. In addition, there shall be attached a plot plan of the real property to be affected, prepared by a licensed land surveyor, indicating the location and the size of the lot and size of improvements thereon and/or proposed to be erected thereon.

C. Stay of proceedings. An appeal to the Board of Appeals shall stay all proceedings in furtherance of the action appealed from unless the Building Inspector certifies to the Board of Appeals after the notice of appeal shall have been filed with him that, by reason of facts stated in the certificate, a stay would, in his opinion, cause imminent peril to life and property, in which case proceedings shall not be stayed otherwise than by a restraining order which may be granted by the Board of Appeals or by the Supreme Court, on application, on notice to the Building Inspector and on due cause shown.

D. Public hearing. The Board of Appeals shall conduct a public hearing on any appeal, application or request made pursuant to this chapter. Such public hearing shall be held within a reasonable time of the date an appeal is taken or an application or request is made to the Board.

E. Notice of hearing. Notice of the hearing shall be published in the official newspaper at least 10 days prior to the date of such hearing. Notice shall also be sent by the applicant, at least 10 days prior to the date of such hearing, to all property owners within 250 feet of the perimeter of the property for residential uses and within 500 feet of the perimeter of the property for commercial or industrial uses. The Village Clerk shall furnish the applicant with signs indicating the date and purpose of the public hearing. The applicant shall cause said signs to be posted on the subject property on each street frontage. The costs of all such notices shall be paid for by the applicant.

F. Action. Every decision, determination or interpretation of the Board of Appeals shall be by resolution, shall be recorded and shall fully set forth the facts of the case, the findings and the conclusions on which the decision is based. The Board shall immediately file its resolution in the office of the Board and with the Village Clerk and shall thereafter mail a copy of such resolution to the applicant.

G. Fees. Every application or appeal to the Board of Appeals shall be subject to a nonrefundable fee, payable to the Village of Buchanan, in an amount as set from time to time by resolution of the Board of Trustees for an application requesting a use variance or for any other matter. No application or appeal shall be accepted for processing until the required fee has been paid.

[Amended 2-7-2011 by L.L. No. 9-2011]

H. Appeal from decision of the Board of Appeals. In case of an appeal from the Board of Appeals to any court having jurisdiction, the Board of Appeals shall make the return required by law and shall promptly notify the Village Attorney of such appeal and furnish him with a copy of the return, including a transcript of testimony. Any person aggrieved by any decision of the Board of Appeals may, within 30 days of the filing of the decision with the Village Clerk, appeal said decision. After said 30 days, all decisions shall be final and unappealable.