Pursuant to § 7-712 of the Village Law of the State
of New York, there shall be a Zoning Board of Appeals consisting of
five members to be appointed for a term of five years by the Board
of Trustees. The Zoning Board of Appeals shall select a Chairperson
and a Secretary from its own membership. The Zoning Board of Appeals
already established shall continue to function under the provisions
of this chapter, and the members thereof may continue in office until
their respective terms expire. No member of the Zoning Board of Appeals
shall be a member of the Board of Trustees or the Planning Board.
Any vacancy occurring during any term shall be filled by the Village
Board of Trustees for the unexpired term only.
The Zoning Board of Appeals (ZBA) 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 Board that is conferred
by law:
A.
Interpretation. On appeal from an order, requirement, decision or
determination made by an administrative official or on request by
any official board or agency of the Village, to decide any of the
following questions:
B.
Variances.
(1)
Variances. On appeal from an order, requirement, decision or determination
made by the Code Enforcement Officer or on referral of an applicant
to the Board by an approving agency acting pursuant to this chapter,
the Zoning Board of Appeals is authorized to reverse or affirm, wholly
or partly, or vary or modify the strict letter of this chapter where
its literal interpretation would cause practical difficulties or unnecessary
hardships, as defined in this section, in such manner as to observe
the spirit of the chapter, to secure public safety and welfare and
to do substantial justice.
(a)
Area variances. The ZBA may grant an area variance in the application
of the provisions of this chapter. In making its determination, the
Board 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 of such grant.
In making its determination the Board shall 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;
[5]
The alleged difficulty was self-created, which consideration
shall be relevant to the decision of the ZBA but shall not necessarily
preclude the granting of the area variance.
[6]
The ZBA, in granting area variances, shall grant the minimum
variance that it deems 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.
(b)
Use variances. The ZBA may grant a use variance relating to
the land for a use not allowed in the zoning district in which the
land is located as provided in this chapter. In making its determination,
the ZBA shall take into consideration that no use variance shall be
granted without a showing by the applicant that applicable zoning
regulations and restrictions have caused unnecessary hardship to the
applicant. In order to prove unnecessary hardship, the applicant shall
demonstrate that for each and every permitted use under this chapter
for the district in which the applicant's 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. The ZBA, in
granting use variances, shall grant the minimum variance that it deems
necessary and adequate to address the unnecessary hardship proven
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.
C.
Imposition of conditions. The ZBA shall, in the granting of use variances,
area variances, and any other discretionary relief, 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
zoning chapter and shall be imposed for the purpose of minimizing
any adverse impact such variance or relief may have on the neighborhood
or community.
The powers and duties of the Board of Appeals shall be exercised
in accordance with the with the following procedure and as required
by Article 7, § 7-712 of the Village Law:
A.
Opinion of Code Enforcement Officer. If, in the determination of
the Code Enforcement Officer, any plan and/or application submitted
does not comply with the provisions of this chapter, he shall return
one copy of the plans with written disapproval to the applicant and
forward one copy of the plans, together with the application, to the
Chairman of the Board of Appeals.
B.
Forward of appeal. Within 60 business days after the date of the
written disapproval by the Code Enforcement Officer of any such plan
and/or application, the applicant may appeal to the Board of Appeals
from such ruling by serving upon the Village Clerk, in duplicate,
a written notice of appeal, addressed to the Code Enforcement Officer
and to the Board of Appeals, of the taking of such an appeal from
such decision, specifying the grounds of the appeal. Such service
upon the Village Clerk shall be deemed proper service upon the Code
Enforcement Officer and upon the Board of Appeals. The Village Clerk
shall immediately forward to the Code Enforcement Officer and to the
Chairman of the Board of Appeals said notice of appeal.
C.
Chairperson duties. All meetings of the ZBA shall be held at the
call of the chairperson and at such other times as such ZBA may determine,
and a quorum of the ZBA's membership is required for any meeting.
The chairperson or, in the chairperson's absence, the acting
chairperson may administer oaths and compel the attendance of witnesses.
D.
Meetings. Meetings of the ZBA shall be open to the public to the
extent provided in Article 7 of the New York State Public Officers
Law.
E.
Minutes. The ZBA 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 examination
and other official actions.
F.
Assistance to Zoning Board of Appeals. The ZBA 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. Such department, agency or employee shall be
reimbursed for any expenses incurred as a result of such assistance.
G.
Appellate jurisdiction. The jurisdiction of the ZBA 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 an enforcement or administrative official. Such appeal may
be taken by any person aggrieved, or by an officer, department, board
or bureau of the Village.
H.
Filing of administrative decision and time of appeals.
(1)
Each order, requirement, decision, interpretation or determination
of the administrative official charged with the enforcement of the
zoning chapter shall be filed in the office of same within five business
days from the day it is rendered and shall be a public record. Any
failure to so file shall not affect the validity or effective date
of what is to be filed. The decision of the Zoning Board of Appeals
on the appeal shall be filed in the office of the Village Clerk, and
a copy thereof mailed to the applicant.
(2)
An appeal shall be taken within 60 days after the filing of any order,
requirement decision, interpretation or determination of the administrative
official, by filing with the administrative official and the ZBA a
written 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 ZBA all the papers constituting the
record upon which the action appealed from was taken.
(3)
Each appeal or application shall fully set forth the circumstances
of the case, shall refer to the specific provision of the zoning chapter
involved and shall exactly set forth, as the case may be, the interpretation
that is claimed, the details of the variance or other relief that
is applied for and the grounds on which it is claimed that the same
should be granted.
(4)
All appeals and applications made to the ZBA shall be accompanied
by a fee in accordance with the Fee Schedule of the Village of Florida.
I.
Stay upon appeal. An appeal shall stay all proceedings in furtherance
of the action appealed from, unless the administrative official, from
whom the appeal is taken, certifies to the ZBA 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 ZBA or by a court of record on application,
on notice to the administrative official and on due cause shown.
J.
Hearing on appeal. The ZBA shall fix a reasonable time for the hearing
of the appeal or other matter referred to it and give public notice
of such hearing by publication in a paper of general circulation in
the Village at least five days prior to the date thereof. The cost
of sending or publishing any notices relating to such appeal, or a
reasonable fee relating thereto, shall be borne by the appealing party
and shall be paid to the ZBA prior to the hearing of such appeal.
Upon the hearing, any party may appear in person, or by agent or attorney.
K.
In addition to such published notice, the Board of Appeals shall
cause notice to be given of the substance of every appeal or variance,
together with notice of the hearing thereon, by causing notices thereof
to be mailed at least five days before the date of said hearing to
the owners of all property abutting that held by the applicant in
the immediate area, whether or not involved in such appeal or application,
and all other owners within 300 feet or such additional distance as
the Board of Appeals may deem advisable from the exterior boundaries
of the land involved in such appeal or application, as the names of
said owners appear on the last-completed assessment roll of the Village.
Such notice shall state the nature of the variance request, be sent
by regular mail with certificate of mailing requested, and the applicant
shall furnish proof of compliance with the notification procedure.
Any or all of the notices required by this section shall be issued
by the Secretary of the Board of Appeals upon order of the Board of
Appeals or upon order of the Chairman of said Board if the appeal
or application is received when the Board is not in session and the
Chairman deems it necessary or desirable to expedite the public hearing
on such appeal or application. Provided that due notice shall have
been published as above provided and that there shall have been substantial
compliance with the remaining provisions of the subsection, the failure
to give notice in exact conformance herewith shall not be deemed to
invalidate action taken by the Board of Appeals in connection with
the granting of any appeal or variance.
L.
In addition, the applicant shall post a sign on the property which
is the subject of the application on or before 15 days prior to the
first date of public hearing and shall remove such sign within two
days following such hearing. The sign shall be obtained from the Code
Enforcement Officer and shall be at least 30 inches by 20 inches,
consist of sturdy and serviceable material containing a white background
with black letters and shall be placed in a location plainly visible
from the most commonly traveled street upon which the property fronts
but lo case more than 20 feet back from the front lot line. Such sign
shall be not more than three feet above the ground and shall read
as follows, in legible lettering at least two inches:
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"THE USE OF THIS SITE IS PROPOSED TO BE CHANGED AS FOLLOWS:
[DESCRIBE PROPOSED CHANGE]
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THIS MATTER IS SUBJECT TO PUBLIC HEARING AT VILLAGE HALL ON
[GIVE DATE AND TIME]."
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M.
Prior to the public hearing on the application, the applicant shall
submit a notarized statement to the Board of Appeals certifying full
compliance with the requirements set forth above.
(1)
At least 10 days prior to the public hearing, the ZBA shall transmit
to the Planning Board a copy of any appeal or application, together
with a copy of the notice of such hearing, but only for applications
or appeals which require Planning Board approval or a separate application,
together with a copy of the notice of such hearing. The Planning Board
may submit to the Board of Appeals an advisory opinion on said appeal
or application at any time prior to the rendering of a decision by
the ZBA. If the Planning Board does not provide comment upon the application
or appeal within 30 days of receipt of said application from the ZBA,
the Planning Board shall be deemed to have waived its right to provide
an advisory opinion.
N.
Time of decision. The Zoning Board of Appeals shall decide upon the
appeal within 62 days after the conduct of said hearing. The time
within which the ZBA must render its decision may be extended by mutual
consent of the applicant and the ZBA.
O.
GML review. Notice to regional state park commission and Orange County
Planning Department. At least five days before such hearing, the ZBA
shall mail notices thereof to the parties; to the regional state park
commission having jurisdiction over any state park or parkway within
500 feet of the property affected by such appeal; and to the Orange
County Planning Department, as required by § 239-M of the
New York State General Municipal Law, which notice shall be accompanied
by a full statement of such proposed action, as defined in § 239-M
of the General Municipal Law.
P.
SEQRA. The Zoning Board of Appeals shall comply with the provisions
of the State Environmental Quality Review Act (SEQRA) and its implementing
regulations.
Q.
Decision of the ZBA. Except for a rehearing as set forth in subsection
"N" above, every motion or resolution of the ZBA shall require for
its adoption the affirmative vote of a majority of all members of
the Zoning Board of Appeals as fully constituted regardless of vacancies
or absences. When an action is the subject of a referral to the Orange
County Planning Department, the voting provisions of § 239-M
of the General Municipal Law shall apply.
R.
Article 78 proceeding. Any person or persons, jointly or severally
aggrieved by any decision of the Zoning Board of Appeals or any officer,
department, board or bureau of the Village, may apply to the supreme
court for review by a proceeding under Article 78 of the Civil Practice
Law and Rules. Such proceeding shall be instituted within 30 days
after the filing of a decision of the ZBA in the office of the Village
Clerk.
S.
Expiration. Unless a building permit has been issued and construction
commenced and diligently pursued within 12 months of the date of the
granting of a variance, such variance may be revoked after notice
and an opportunity to be heard. Extensions may be granted by the ZBA
if good cause is demonstrated.
T.
Fees. Engineering fees and legal fees incurred subsequent to Zoning
Board of Appeals' decisions shall be paid by the applicant prior
to issuance of any permits or certificates of occupancy.
