Article V Board of Appeals

Except as otherwise provided in New York State Village Law § 7-712-1(12), every motion or resolution of the Zoning Board of Appeals shall require for its adoption the affirmative vote of a majority of all the members of the Board as fully constituted regardless of vacancies or absences. The failure of the Board to adopt a decision within any specific period of time shall constitute neither a denial nor an approval. Where an action is the subject of a referral to the Suffolk County Planning Commission, the voting provisions of GML § 239-m shall apply.

The Zoning Board of Appeals may render its decision on any appeal or application in a short-form format, summarily setting forth the Board's determination and conditions if an without enumerating findings or conclusions which formed the basis for the determination. Within 30 days after the filing of the short-form decision in the office of the Village Clerk, any appellant, applicant or other person or persons jointly or severally aggrieved by the decision may file a written demand with the Village Clerk requesting that the Zoning Board of Appeals render its decision in a format containing the findings and conclusions which formed the basis for the Board's determination. The Village Clerk shall promptly deliver such written demand to the Chair, who shall promptly convene a meeting of the Board to render such long-form decision.

In a case where the Board renders a short-form decision and no written demand requesting a long-form decision is filed with the Village Clerk within the required thirty-day period, the date of filing of the short-form decision with the Village Clerk shall be deemed the date of the filing of the Board's decision for all purposes. In a matter where the Board renders, or is required to render, a long-form decision, the date of filing of the long-form decision with the Village Clerk shall be deemed the date of filing of the Board's decision for all purposes.

The Village Board shall designate the Chairperson and Vice Chairperson of the Board of Appeals. Such designation shall be for one official year of the Village and shall expire at the end of each official year. During the absence, disability or disqualification of the Chairperson, the Vice Chairperson shall perform all the duties, exercise the powers and be subject to all of the responsibilities of the Chairperson. The designation of Chairperson and Vice Chairperson may be withdrawn at the pleasure of the Village Board. The duties of the Chairperson shall be as follows:

[Added 9-13-2018 by L.L. No. 10-2018]

To preside at all meetings.

To postpone meetings due to inclement weather and to call special meetings.

To sign, together with the administrative support personnel of the Village Clerk or Building Department, all official documents of the Board of Appeals.

To see that all reports, documents, and actions of the Board of Appeals are properly made, executed, filed or taken, as the case may be, in accordance with law and regulations of the Board of Appeals.

§ 116-25 Procedure for application; public hearings.

To serve as liaison to the Village Board of Trustees and other Village boards.

Training. All members of the Board of Appeals, including alternate members, shall be required to meet the training and continuing education requirements as established by law and the Village Board.

[Added 9-13-2018 by L.L. No. 10-2018]

Alternate members. For the purposes of substituting for a member of the Board of Appeals in the event that such member is unable to participate because of a conflict of interest or is otherwise unavailable, the Mayor may appoint one or more alternate members subject to the approval of the Board of Trustees, with any such appointment for a term of one year from the date of appointment. Any designation of an alternate member in replacement of a member on a particular case shall be made by the Chairperson of the Board of Appeals and shall be entered in the minutes.

[Added 9-13-2018 by L.L. No. 10-2018]

Applications for any action by the Board of Appeals shall be submitted in the form required by the Board and filed in the municipal office.

The Board shall fix a time and place for a public hearing thereon and shall provide for the giving of notice at least 10 days prior to the date thereof, as follows:

By publishing a notice in the official newspaper.

By requiring the applicant to erect a white-with-black-lettering sign or signs measuring not less than 22 inches long and 14 inches wide, which shall be prominently displayed on the premises facing each street on which the property abuts, giving notice that an application for an appeal is pending and the date, time and place where the public hearing will be held. The sign shall not be set back more than 10 feet from the street line and shall not be less than two nor more than six feet above the grade at the street line. The sign shall be made of durable material and shall be furnished by the Board of Appeals. It shall be displayed for a period of not less than 10 days immediately preceding the public hearing date. No additional posting shall be required for any adjournment date. The applicant shall file an affidavit that he has complied with the provisions of this section.

[Amended 6-20-1989 by L.L. No. 9-1989; 1-9-1998 by L.L. No. 1-1998]

If the land involved in an application is within 500 feet of the boundary of any other municipality, notice of the public hearing shall also be mailed to the Municipal Clerk of such other municipality.

The applicant shall mail written notice of the date, time and place of the hearing by either certified or registered mail, return receipt requested, to every property owner, as shown on the current Village of Southampton assessment rolls, within the area immediately adjacent and directly opposite thereto for a distance of 200 feet from the perimeter of the property.

[Added 3-9-1990 by L.L. No. 3-1990]

Notice of the public hearing and a description of the applicant's proposal shall be transmitted to the Suffolk County Planning Commission in any case where the land involved in an application is within 500 feet of:

The boundary of any other municipality, the Atlantic Ocean, any bay or estuary thereof.

Any state or county park or other recreation area.

The right-of-way of any federal, state or county parkway, throughway, expressway or other controlled or full access highway.

The right-of-way of any stream or drainage channel owned by the county or for which the county has established channel lines.

§ 116-26 Appeals on interpretation of chapter and map.

The boundary of any state- or county-owned land on which a public building or institution is situated.

No action shall be taken on applications referred to the Suffolk County Planning Commission until the Department's recommendation has been received or 30 days have elapsed after the Department received the full statement on the applicant's proposal.

A record shall be established of all variances granted pursuant to action of the Board of Appeals under this chapter. Each case shall be identified by a sequential numbering system and alphabetically by applicant's name. Said files shall be available for public inspection.

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 such fact. The Board shall keep records of its examinations and official actions, all of which shall be filed in the Municipal Clerk's office and shall be a public record.

Building permits authorized by Board of Appeals' actions on variance cases shall be obtained within 90 days and shall automatically expire if construction under the permit is not started within 90 days of issuance and completed within one year, except for area and dimension variances. Extensions of these periods may be granted by the Board of Appeals without a further public hearing where good cause is shown.

The application fee for a variance application shall be $750 or such other amount as the Village Board of Trustees may hereafter fix and establish from time to time by resolution.

[Amended 12-9-1988 by L.L. No. 8-1988; 1-9-1998 by L.L. No. 1-1998; 11-9-2006; 6-23-2009]

The Board of Appeals shall, upon appeal, hear and decide:

Any matter where the applicant alleges that the Building Inspector was in error in refusing to issue a building permit or certificate of occupancy as a result of misinterpreting the meaning, intent or application of any section or part of this chapter.[1]

[1]

Editor's Note: As to standards and procedures for the issuance of building permits, see Ch. A119, Building Construction Regulations.

Any matter where the appellant alleges that the Building Inspector was in error in his determination as to the exact location of a district boundary line on the Zoning Map that forms a part of this chapter.[2]

[2]

Editor's Note: The Zoning Map is located at the back of this Code.

Any matter which the Building Inspector appeals on grounds of doubt as to the meaning or intent of any provision of this chapter or as to the location of a district boundary line on the Zoning Map.

§ 116-27 Variances generally.

The Board of Appeals shall have the power by way of original jurisdiction and in passing on appeals, where there are practical difficulties or unnecessary hardships in the way of carrying out the strict letter of this chapter, to vary or modify the application of the regulations or provisions of this chapter.

Guiding principles.

Every decision by the Board of Appeals granting a variance shall clearly set forth the nature and extent of such variance.

Every variance granted by the Board of Appeals may be made subject to such conditions and safeguards as the Board shall deem to be applicable to the particular case. Violations of such conditions or safeguards that are a part of the Board's decision shall be deemed a violation of this chapter, punishable under the provisions of § 116-40 of this chapter.

Any variance granted by the Board of Appeals pursuant to the provisions of this article shall be construed to be a nonconforming use.

General standards. For every such variance from the strict application of any provision of this chapter, the Board of Appeals shall determine that:

Strict application of the chapter would cause practical difficulties or unnecessary hardships.

Such variance is the minimum variance that will relieve such practical difficulties or unnecessary hardships.

Such variance is in the spirit of the general purposes and intent of this chapter as stated in § 116-1 of this chapter.

Such variance is so designated as to provide reasonable consideration to, among other things, the character of the neighborhood or district, the conservation of property values in the vicinity and the guidance of building development in accordance with the Master Plan.

Such variance does not involve substantial detriment to the public welfare nor substantially impair the intent and purpose of the zone plan and of this chapter.

§ 116-28 Specific types of variances.

[Amended 3-8-1974; 3-13-1981 by L.L. No. 1-1981;[1] 12-9-1983; 2-25-1986 by L.L. No. 1-1986; 8-20-1991 by L.L. No. 6-1991; 9-24-1991 by L.L. No. 10-1991; 12-21-1993 by L.L. No. 9-1993; 6-24-2008; 5-20-2025 by L.L. No. 4-2025]

In the instances of the following types of variances, the Board of Appeals is hereby specifically empowered to grant the variance pursuant to the guiding principles and the general standards stated in § 116-27B and C and to the provisions which follow.

With respect to lots lying across district boundary lines:

To grant a permit, in appropriate cases, where the lot of the applicant, as such lot existed on the effective date of this chapter, lies across the boundary of two districts, for the extension into the more restrictive district, but for a distance not exceeding 50 feet measured at right angles to such district boundary line.

With respect to nonconforming uses, buildings, structures and lots:

To grant a permit for the extension of such a nonconforming use on the same lot on which it was located or an increase in the degree of nonconformity of a nonconforming building or structure, provided that:

In the case of a nonconforming use, such enlargement or extension shall not exceed, in all, 50% of the floor area of such building or structure actually devoted to such nonconforming use on the effective date of this use having first become nonconforming. In the case of a nonconforming building or structure, such enlargement or extension shall not exceed, in all, 50% of the usable floor area of such building or structure existing on the effective date of this building or structure having become nonconforming.

All parking and truck loading requirements of § 116-14 of this chapter are complied with.

There shall be no change in the nature or character of such nonconforming use or of such building or structure.

The lot coverage and density shall not be greater than would be permitted by the most restrictive lot coverage and density provisions of this chapter applicable to a permitted use or special exception use of the same nature or character. The term "density" includes, among other things, the number of dwelling units allowed based on the lot area, the number of guest units allowed based on the lot area and the number of uses allowed based on the lot area.

To grant a permit for the reconstruction, structural alteration, restoration or repair of a building or structure used for a nonconforming use, to an extent not to exceed in aggregate 100% of the gross floor area of such building or structure.

To grant a certificate of occupancy for a change in a nonconforming use, provided that:

The Board of Appeals shall have made a determination that such change will be beneficial to the general neighborhood.

Such change is made subject to such reasonable conditions and safeguards as the Board of Appeals may stipulate.

With respect to yard requirements:

To grant a variance modifying the yard requirements of a nonconforming lot which qualified under the terms of § 116-19C(4) of this chapter as to ownership, but where compliance with the dimensional provisions of the chapter is not feasible.

With respect to fences:

To grant a permit, in appropriate cases, for a higher fence or wall than the maximum heights stipulated in § 116-18 of this chapter.

With respect to accessory parking and truck loading spaces:

To waive the requirements of § 116-14C, D and E of this chapter for off-street parking and truck loading spaces, in whole or in part, in a case where the municipality owns or operates a public parking and/or truck loading area within 500 feet of the lot and where the Board of Appeals determines that there is no need for additional facilities.

To waive the requirements of § 116-14C, D and E of this chapter for off-street parking and/or truck loading spaces, in whole or in part, after making a finding that a normal application of such requirements is infeasible because:

The lot has either too restricted an area or unusual dimensions, shape or topographic character, and

No other suitable and adequate lot can be reasonably put to such use within 500 feet of the property to which said parking and/or truck loading spaces are accessory.

To permit a reduction in the number of off-street parking spaces and/or truck loading spaces originally required and installed for a particular use pursuant to § 116-14C, D and E of this chapter in cases where the Board of Appeals determines that, by reason of diminution in number of dwelling units or residents or in floor area, seating capacity or area, number of employees or change in other factors determining the demand for such spaces, the proposed reduction in available spaces will be consistent with the requirements of said subsections, and further provided that the area so withdrawn from these uses shall remain in reserve for potential future increases in need.

Special requirements.

Every decision of the Board of Appeals which grants a variance waiving, varying or modifying the requirements of § 116-14C, D or E of this chapter for off-street parking and/or truck loading spaces, in whole or in part, shall clearly set forth the nature and extent of such variance by specifying the number of spaces required to be provided pursuant to said requirements, the number of spaces required to be provided by the Board of Appeals and the number of spaces thus waived by the Board of Appeals. The number of spaces so waived by the Board of Appeals shall constitute the number of spaces for which a variance is granted.

Every variance granted by the Board of Appeals which waives, varies or modifies the requirements of § 116-14C, D or E of this chapter for off-street parking and/or truck loading spaces, in whole or in part, shall be made subject to a condition requiring a payment to the Village of Southampton of a sum to be determined by the Board of Trustees for each and every space for which a variance is granted, which sums shall constitute a trust fund to be used by the Board of Trustees exclusively for public off-street parking and truck loading space purposes, including the acquisition and improvement of land for such purposes. Such condition shall be deemed a condition of every such variance, and such payment may be referred to as the "off-street parking space fee."

The amount of the per-space sum required to be paid to the Village for each and every space for which a variance is granted pursuant to Subsection F(4)(b) above shall be $8,000 per space or such other amount as the Board of Trustees may hereafter fix by resolution of such Board. The Board of Trustees may from time to time fix, by resolution, the amount of such per-space sum.

The provisions of Subsection F(4)(a), (b) and (c) above shall not be applicable in a case where the Board of Appeals grants a variance pursuant to the provisions of Subsection F(1) of this section.

With respect to waterfront lots:

To grant, in appropriate cases where the premises are bounded by the Atlantic Ocean or by any other natural body of water, a permit for the erection of an accessory building nearer to the front lot line than the main building, subject to all other pertinent provisions of the chapter and subject to the following conditions:

In any residential district, such accessory building shall set back from the street line at least 100 feet and shall conform to the requirements of the particular district relating to side yards as if the same were a main residence.

Such building shall not exceed one story in height above average ground level and shall in no event exceed 16 feet in height, measured from average ground level to the highest point thereof. Allowance of any height above the ground over 12 feet shall be without reference to interior use but rather for the purpose of adapting such building to the considerations hereinafter set forth in Subsection G(1)(e) below.

The area of such building shall not exceed 1,200 square feet or 75% of the area of the main building, whichever shall be less.

No such accessory building shall be used for residential purposes.

Where necessary for the protection of the district and its character and of the other properties in the vicinity and of the owners thereof, the Board of Appeals shall impose appropriate restrictions, conditions and safeguards based upon but not limited to the following considerations:

[1]

Desirability and suitability of placement, location, architecture and design with reference to surroundings and the use and enjoyment of the main building and neighboring properties, including, where the Board shall deem proper, conformity of architecture and design to the main building.

[2]

Screening, where deemed necessary, by planting shrubbery and trees or other barriers, from adjoining properties, drives and streets or ways, whether public or private.

[3]

Protection against use or manner of use obnoxious or detrimental to others or inconsistent with the spirit and purpose of this chapter.

With respect to temporary building permits:

To grant a temporary building permit for a period not to exceed one year for a nonconforming building, structure or use incidental to a building or other construction project, including such uses as the storage of building supplies and machinery, a real estate office or model houses located on or near a tract of land where individual properties are being offered for sale, provided that:

Such temporary permit shall be issued only upon written agreement by the owner or his agent to remove such building, structure or use or to convert it to a conforming use upon the expiration of the permit.

Such permit shall be subject to such reasonable conditions as the said Board of Appeals shall determine to be necessary to protect the public health, safety, morals and general welfare.

With respect to temporary directional signs indicating the location of a real estate subdivision:

To grant a permit for the location of a temporary directional sign off the subdivision site for a period of one year, provided that:

Such temporary permit shall be issued only upon written agreement by the owner or his agent to remove such temporary directional sign upon the expiration of the permit.

Such permit shall be subject to such reasonable conditions as the said Board of Appeals shall determine to be necessary to protect the public health, safety, morals and general welfare.

Only the minimum number of such signs shall be permitted consistent with their purpose.

Such permit may be renewed annually, at the direction of the Board of Appeals, for not more than two additional years.

With respect to off-street parking spaces for office or office building use:

To permit, in appropriate cases, the off-street parking space requirement for office or office building use to be determined by establishing and utilizing a requirement of one space per 200 square feet of gross floor area (rather than one space per 150 square feet of gross floor area as provided in § 116-14D), provided that the Board of Appeals determines that:

Such variance will benefit the Village by lessening the amount of paving that would otherwise be required and increasing the amount of natural or suitably landscaped open space or buffer area that would otherwise be provided.

Such variance will not result in more gross floor area than would otherwise be allowed (to wit, than would be allowed if the one space per 150 square feet of gross floor area requirement was utilized), except as provided in § 116-28J(3).

By reason of the particular circumstances involved, including but not limited to the nature of the proposed use and the location of the property, such variance will result in sufficient off-street parking spaces to serve the reasonably anticipated parking needs and demands.

Such variance may be made subject to such conditions and safeguards as the Board of Appeals shall deem necessary or advisable, including but not limited to conditions and safeguards requiring that:

Land area is reserved for potential future off-street parking space use in the event of future increases in parking needs or demands.

A written agreement or covenant is furnished by the applicant to provide additional off-street parking spaces in the future in the event of future increases in parking needs or demands.

Such variance is a temporary variance which shall expire after a specified period of time, unless renewed after future review if the then-prevailing circumstances warrant such renewal.

In appropriate cases compatible with an intent to preserve, protect, restore or promote the historic and/or architectural character and integrity of a building of historical and/or architectural significance which is being threatened by a new development, alteration or replacement, the Board of Appeals may permit such variance to result in more gross floor area than would otherwise be allowed, provided that the Board of Appeals determines that:

A threat to the continuance of a building of historic and/or architectural significance exists.

Such permission will benefit the Village by preserving, protecting, restoring or promoting the historic and/or architectural character and integrity of such building.

Such permission is needed to support the continued historic and/or architectural character and integrity of such building.

Such permission to exceed the amount of gross floor area that would otherwise be allowed may be made subject to such conditions and safeguards as the Board of Appeals shall deem necessary or advisable, including but not limited to requiring that a written agreement or covenant be furnished by the applicant to eliminate office use of such excess floor area in the event that such building is removed from the property or destroyed by natural or other means.

The provisions of § 116-28F(4) shall not be applicable in a case where the Board of Appeals grants a variance pursuant to the provisions of this § 116-28J.

With respect to buildings of historic and/or architectural significance:

In appropriate cases compatible with an intent to preserve, protect, restore or promote the historic and/or architectural character and integrity of a building of historic and/or architectural significance which is being threatened by a new development, alteration or replacement, the Board of Appeals may grant a use variance for such use or uses as may be appropriate and such other variance as may be appropriate, provided that the Board of Appeals determines that:

A threat to the continuance of a building of historic and/or architectural significance exists.

Such variance or variances will benefit the Village by preserving, protecting, restoring or promoting the historic and/or architectural character and integrity of such building.

A need for such variance or variances exists in order to support the continued historic and/or architectural character and integrity of such building.

Such variance or variances is/are reasonable as the same may relate to nearby neighborhood uses.

Considering existing zoning district provisions, objectives, principles and standards expressed in the Master Plan and objectives, principles and standards expressed in Chapter 65, Historic and Landmark Preservation, of the Village Code, such variance or variances is/are in the best interest of the Village.

The application for such variance or variances shall be referred to the Board of Architectural Review and Historic Preservation for its report before any determination by the Board of Appeals. The following provisions shall be applicable to such application and referral:

The Board of Architectural Review and Historic Preservation shall consider whether the building meets one or more of the criteria for designation as a landmark under Chapter 65, Historic and Landmark Preservation, of the Village Code, and said Board shall report its findings with respect thereto to the Board of Appeals. If the Board of Architectural Review and Historic Preservation finds that the building does not meet any of said criteria for designation as a landmark, then said building shall not be considered a building of historic and/or architectural significance within the meaning of this Subsection K of § 116-28, and said building shall not be eligible for a variance under this Subsection K of § 116-28.

The Board of Architectural Review and Historic Preservation may consider and report its comments and recommendations regarding the criteria for such variance or variances to the Board of Appeals.

Such variance or variances may be made subject to such conditions and safeguards as the Board of Appeals shall deem necessary or advisable, including but not limited to requiring that a written agreement or covenant be furnished by the applicant to eliminate such use or uses or to convert the same to a conforming use in the event that such building is removed from the property or destroyed by natural or other means.

With respect to Sustainable Building Regulations:

In appropriate cases, with an intent to preserve, protect, restore or promote the historic and/or architectural character and integrity of a building of historic and/or architectural significance, to waive the provisions of on-site solar panels or other green infrastructure as required by § 43-12 of the Village Code to meet a home energy rating system (HERS) rating, provided that the Board of Appeals determines that:

The structure is located within a Village Historic District, is a designated Village landmark, or has been inventoried as being potentially eligible for designation; and

Solar panels or green infrastructure cannot be reasonably accommodated on site without compromising the historic integrity of the structure or site; and

Such waiver will benefit the Village by preserving, protecting, restoring or promoting the historic and/or architectural character and integrity of such structure or site; and

No feasible on-site alternatives exist to meet the home energy rating system (HERS) rating; and

All other steps that were implemented to meet the required HERS rating for the planned work or construction remain in place; and

(f)

In such cases, the Board of Zoning Appeals may refer the application to the Board of Architectural Review and Historic Preservation for a recommendation pursuant to § 117-4.

In other appropriate cases, to waive the provision of on-site solar panels or other green infrastructure required by § 43-12 of Village Code to meet a home energy rating system (HERS) rating, provided that the Board of Appeals determines that:

Solar panels or green infrastructure cannot be reasonably accommodated on site due to site constraints, including but not limited to size, shape, topography, or the presence of wetlands, dunes, flood zones, or other environmentally sensitive lands; or

Solar panels or green infrastructure cannot be reasonably accommodated on site without the excessive removal of trees or natural vegetation; or

Providing solar panels or green infrastructure on-site would result in an undesirable change in the character of the neighborhood or to nearby properties, or will have an adverse physical or environmental impact; or

Green infrastructure on-site would be ineffective as demonstrated by competent evidence; and

All other steps that were implemented to meet the required HERS rating for the planned work or construction remain in place; and

(f)

No feasible on-site alternatives exist to meet the home energy rating system (HERS) rating.

In order to promote a more fair and equitable distribution of the resources and benefits for which the Sustainable Building Regulations of Chapter 43, Article III, of the Village Code were enacted, every variance granted by the Board of Appeals which waives, varies or modifies the requirements of home energy rating system (HERS) rating as to green infrastructure installations, in whole or in part pursuant to Subsection L above, shall be made subject to a condition requiring a payment to the Village of Southampton of a sum to be calculated in accordance with § 116-28L(4) below, which sums shall constitute a trust fund to be used by the Board of Trustees exclusively for green energy initiatives to be undertaken for the benefit, health, and welfare of the Village and its inhabitants. Such condition shall be deemed a condition of every such waiver, and such payment may be referred to as the "green energy fee."

The amount of green energy fee required to be paid to the Village for each and every application for which a waiver is granted pursuant to Subsection L shall be 150% of the estimated cost of construction for the solar panels or required green infrastructure to meet the home energy rating system (HERS) rating as demonstrated by competent evidence and approved by the Board of Zoning Appeals, or such other amount as the Village Board of Trustees may hereafter fix by resolution. The Board of Trustees may from time to time fix, by resolution, the amount of the green energy fee.