No board, agency, officers or employees of the Town shall issue, grant or approve any permit license, certificate or other authorization for any construction, reconstruction, alteration, enlargement or moving of any building or structure, or for any use of land or building that would not be in full compliance with the provisions of this chapter, except as permitted under §
355-77B(3). Any such permit, license, certificate or other authorization issued, granted or approved in violation of the provisions of this chapter shall be null and void and of no effect without the necessity of any proceedings or revocation or nullification thereof.
Unless otherwise provided, the Building Inspector, and any other
person designated for the purpose, shall enforce the provisions of
this chapter and any rules and regulations made, or as may be made,
in furtherance thereof. For such purposes he, or other designated
person, may, from time to time and at reasonable hours, enter and
inspect any such building, structure or premises, and may perform
any other act or duty necessary for the proper enforcement thereof.
[Amended 1-24-2007 by L.L. No. 3-2007; 4-23-2008 by L.L. No.
5-2008; 4-29-2020 by L.L. No. 3-2020]
In accordance with Municipal Home Rule Law § 10(1)(ii)(d)(3),
the Town has resolved to supersede New York State Town Law § 268
for violations of this chapter as follows:
A. Any person who shall violate any provision of this chapter or who
shall violate any other regulation made under authority conferred
thereby or who shall knowingly assist therein or who shall use any
land, building or premises in violation thereof, or who shall design
any building or other structure to be used in violation of this chapter
or such regulations made supplemental thereto shall be guilty of an
unclassified misdemeanor pursuant to the Penal Law and liable for
a fine of up to $1,000 per day per violation or to imprisonment for
a term not to exceed 15 days, or both such fine and imprisonment.
B. Any firm, corporation or other entity who or which shall violate
any provision of this chapter or who or which shall violate any other
regulation made under authority conferred thereby or who or which
shall knowingly assist therein or who or which shall use any land,
building or premises in violation thereof, or who or which shall design
any building or other structure to be used in violation of this chapter
or such regulations made supplemental thereto shall be guilty of an
unclassified misdemeanor pursuant to § 80.10 of the Penal
Law and liable for a fine in the amount of $1,000. For purposes of
this subsection, "gain" is defined in § 80.00 of the Penal
Law.
C. For purposes of this section, subsequent violations consist of violations of any section of this Chapter
355.
D. Each day's continued violation thereof shall constitute a separate
additional violation. In addition to the foregoing punitive and remedial
provisions, the Town shall have such other remedies for any violation
or threatened violation of this chapter, as now or hereafter may be
provided by law.
E. In accordance with Municipal Home Rule Law § 10(1)(ii)(d)(3), the Town has resolved to supersede New York State Town Law § 268 for violations concerning illegal housing. Therefore, any person, firm, corporation or other entity who or which is convicted of having an illegal apartment or illegal multifamily home will be guilty of an unclassified misdemeanor pursuant to the Penal Law. The fines contained in Subsection
A will not apply to such a conviction. Instead, any person convicted of such an offense shall be liable for a fine of $1,000 per day and/or imprisonment for a period not to exceed 15 days, or both such fine and imprisonment. Each and every day that any such violation continues after notification that such violation exists shall constitute a separate offense.
F. In case any building or structure is erected, constructed, reconstructed,
altered, converted, located, or maintained, or any building, structure,
land or premises is used in violation of this chapter or any regulation
made pursuant thereto or under authority conferred thereby, in addition
to other lawful remedies, any appropriate action or proceedings may
be instituted to prevent such unlawful erection, construction, alteration,
conversion, repair, maintenance or use, to restrain, correct or abate
such violation, to prevent the occupancy of such building, land or
premises, or to prevent any illegal act, conduct, business or use
in or about such premises. The Building Inspector shall serve written
notice, either by personal service or by certified mail, return receipt
requested, addressed to the premises of such violation, on the person
or corporation committing or permitting the same and, if such violation
does not cease within such time as the Building Inspector shall specify,
which shall be not less than five days, he may institute such of the
foregoing actions as may be necessary to remove the violation. Such
notice may also be served by posting on the premises.
[Amended 7-16-1992 by L.L. No. 5-1992]
A. Organization.
[Amended 1-14-2015 by L.L. No. 1-2015]
(1) The
Board of Appeals, as heretofore established by the Town Board, is
hereby maintained.
(2) Alternate
members. The Town Board hereby establishes alternate Zoning Board
of Appeals positions for purposes of substituting for a member in
the event such member is unable to participate because of a conflict
of interest. Alternate members of the Zoning Board of Appeals shall
be appointed by resolution of the Town Board for terms established
by the Town Board.
(3) The
Chairperson of the Zoning Board of Appeals may designate an alternate
member to substitute for a member when such member is unable to participate
because of a conflict of interest 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 Zoning
Board of Appeals meeting at which the substitution is made.
(4) All
provisions of this section relating to Zoning Board of Appeals member
training and continuing education, attendance, conflict of interest,
compensation, eligibility, vacancy in office, removal, and service
on other boards shall also apply to alternate members.
B. Powers and duties.
(1) General. The Board of Appeals shall have all the powers and duties
prescribed by statute 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 Board that is conferred
by law.
(2) Appeals. The Board of Appeals shall hear and decide appeals from
and review any order, requirement, decision, interpretation or determination
of the Building Inspector, when acting in his capacity as Zoning Enforcement
Officer, or such other official charged with enforcement of this chapter.
The Board of Appeals shall not hear any appeal from nor review any
order, determination, requirement, decision or revocation of the Building
Inspector where such order, determination, requirement, decision or
revocation has been directed by the Town Board. The Board of Appeals
may call upon any department, agency or employee of the Town for such
assistance as shall be deemed necessary by the Board of Appeals, provided
that the Town Board authorizes such assistance.
(3) Interpretation. On an appeal from an order, requirement, decision,
interpretation or determination made by an administrative official
or by the Building Inspector, the Board of Appeals may decide any
of the following questions:
(a)
Determine the meaning of any portion of the text of this chapter
or of any condition or requirement specified or made under the provisions
of this chapter.
(b)
Determine the exact location of any district boundary shown on the Zoning Map in accordance with the rules specified in §
355-7.
(4) Variances. On appeal from an order, requirement, decision or determination
made by the Building Inspector, acting in his capacity as Zoning Enforcement
Officer, the Board of Appeals is authorized, after public notice and
hearing, to grant area variances or use variances as permitted by
this section, by Town Law or as otherwise allowed by law in such manner
and subject to appropriate conditions so as to observe the spirit
of this chapter, secure public safety and welfare and do substantial
justice. Both area variances and use variances, once granted, shall
be construed to run with the particular site or lot and not with the
applicant, but in any case shall expire within two years of the date
of approval unless a building permit or certificate of occupancy has
been issued for the variance.
(a)
Area variances. "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 topographical requirements of
the applicable zoning regulations. Where an applicant requests a variance
of the requirements of this chapter, the Board may grant an area 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 the benefit to the applicant
if the variance is granted as weighed against any detriment to the
health, safety and welfare of the neighborhood or the community if
such variance is granted. Specific findings shall be made, considering
each of the following factors:
[1]
That the variance is or 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 or is not
significant.
[3]
That a substantial change in the character of the neighborhood
or a substantial detriment to adjoining properties will or will not
be created.
[4]
That the difficulty can or cannot be alleviated by some method
feasible for the applicant to pursue other than a variance.
[5]
That, in view of the manner in which the difficulty arose and
considering all of the above factors, the interests of justice will
or will not be served by allowing the variance.
[6]
That the variance would or would not cause adverse aesthetic,
environmental or ecological impacts on the property or on surrounding
areas.
(b)
Use variances. "Use variance" shall mean the authorization by
the Zoning Board of Appeals for the use of land in a manner or for
a purpose which is otherwise not allowed or is prohibited by the applicable
zoning regulations. Where because of unnecessary hardship relating
to the 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 make
each and every one of the following findings:
[1]
After considering all permitted uses, that a reasonable return
can or cannot be realized on the property in question, and that the
lack of any return is or is not substantial.
[Amended 1-27-1994 by L.L. No. 1-1994]
[2]
That the plight of the owner is or is not due to unique circumstances
affecting the property which is the subject of the application and
not to general conditions in the neighborhood.
[3]
That the use to be authorized by the variance will or will not
alter the essential character of the locality.
[4]
That the use to be authorized by the variance is or is not in
reasonable harmony with the intent of this chapter.
[5]
That the unnecessary hardship claimed as a ground for the variance
has or has not been created by the owner or by a predecessor in title;
mere purchase of the land subject to the restrictions sought to be
varied shall not by itself constitute a self-created hardship.
[6]
That within the intent and purpose of this chapter, the variance,
if granted, is or is not the minimum variance necessary to afford
relief. To this end, the Board may permit a lesser variance than that
applied for.
(5) 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, or the period
of time such variance shall be in effect. 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.
[Amended 7-16-1992 by L.L. No. 5-1992]
A. All appeals and applications to the Board of Appeals shall be taken
within 60 days after the filing of any order, requirement, decision,
interpretation or determination of the administrative officer charged
with the enforcement of this chapter by filing with such administrative
official and with the 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 Board
of Appeals all the papers constituting the record upon which the action
appealed from was taken. The cost of sending or publishing any notices
relating to such appeal shall be borne by the appealing party and
shall be paid to the Board prior to the hearing of such appeal. Each
appeal or application shall fully set forth the circumstances of the
case; shall refer to the specific provision of this 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 ground for which it is claimed that the same should be granted.
B. Notice of hearing.
(1) Notice of any hearing before the Board of Appeals shall be published
in a newspaper circulating within the Town of North Castle, at least
10 days prior to the date of said hearing, and any mailing of notices
that may be required by the Board of Appeals shall be at least 10
days before such hearing. The preparation and cost of publication
and mailing of any notice required for such hearing shall be at the
cost and expense of the applicant.
(2) Notice of hearing shall be sent by first class mail to all property
owners within a distance of 250 feet of the property lines of the
applicant. In addition, the Board shall give any other notice required
by law. Notice of the hearing shall be mailed by the applicant in
official envelopes provided by the Town of North Castle. Proof of
mailing to all required property owners shall be demonstrated by providing
the Town with a certificate of mailing (PS Form 3817 or 3877).
[Amended 10-6-2005 by L.L. No. 9-2005; 2-25-2015 by L.L. No. 2-2015]
C. Referral to other agencies. At least five days before the date of
the hearing required by law on any application or appeal to the Board
of Appeals, the Secretary of said Board shall transmit to the County
of Westchester Department of Planning, as required by § 239-m
of the General Municipal Law, and the Secretary of the Planning Board
copies of said application or appeal, together with copies of the
notice of the aforesaid hearing.
D. Compliance with State Environmental Quality Review Act (SEQRA). The
Board of Appeals shall comply with the provisions of the State Environmental
Quality Review Act under Article 8 of the Environmental Conservation
Law and its implementing regulations as codified in 6 NYCRR 617.
E. Action by Board of Appeals. Every decision of the Board of Appeals
shall be by resolution; shall be recorded in accordance with standard
forms adopted by the Board; and shall fully set forth the circumstances
of the case and the findings on which the decision was based. Timely
notice of all decisions shall be given to all parties to the proceedings.
The Board shall decide on matters referred to it within 62 days after
the final hearing and shall, within five days thereafter, file a copy
of each such resolution in the office of the Town Clerk, together
with all supporting documents, and a copy of said resolution with
the Planning Board and the Building Inspector and one copy of said
resolution shall be mailed to the applicant. The time within which
the Board of Appeals must render its decision may be extended by mutual
consent of the applicant and the Board.
F. Article 78 proceeding; how taken on Board of Appeals actions. Any
person or persons jointly or severally aggrieved by any decision of
the Board of Appeals, or any officer, department, board or bureau
of the Town, may apply to the Supreme Court for relief in the manner
provided for by law.