[Amended 9-21-1998 by L.L. No. 7-1998]
A.
A Board of Appeals consisting of five members shall
be established in accordance with the provisions of the Village Law
and shall function as prescribed herein.
B.
The Board of Appeals shall prescribe such rules for
the conduct of its affairs as may be necessary to carry out its duties
under these regulations, and all its determinations shall be made
in accord therewith. In particular, the Board shall conduct itself
according to the following:
(1)
Meetings. All meetings of the Board of Appeals shall
be held at the call of the Chairman and at such other times as a majority
of the members of the full Board may determine. All meetings shall
be conducted in accord with the guidelines established by the Chairman
or, in his absence, the acting Chairman; and such Chairman may administer
oaths and compel the attendance of witnesses.
(2)
Records. The Board shall keep minutes of its proceedings,
including its examinations, findings and official actions, and shall
record the vote of each member upon every question put to vote or,
if absent or failing to vote, indicating such fact. All decisions
of the Board shall be recorded in the minutes which shall fully set
forth the reasons for the decision of the Board and the findings of
fact on which the decision was based, and an appropriate record of
every official determination of the Board shall be filed in the office
of the Village Clerk together with all documents pertaining thereto.
(3)
Voting requirements. The concurring vote of a majority
of the full membership of the Board of Appeals shall be required to
constitute an official action by the Board.
(4)
Eligible applicant or appealer. An application or
appeal to the Board of Appeals may be initiated by any person or party
pursuing an application, aggrieved under, or with a legitimate interest
in these regulations, including the village and its officials. An
appeal for an interpretation or variance may be made only after a
determination and notification of action taken by the Code Enforcement
Official or other body of original jurisdiction.
C.
Permitted action by Board of Appeals.
(1)
Orders, requirements, decisions, interpretations,
determinations. The Board of Appeals may reverse or affirm, wholly
or partly, or may modify the order, requirement, decision, interpretation
or determination appealed from and shall make such order, requirement,
decision, interpretation or determination as in its opinion ought
to have been made in the matter by the administrative official charged
with the enforcement of such local law and to that end shall have
all the powers of the administrative official from whose order, requirement,
decision, interpretation or determination the appeal is taken.
(2)
Use variances.
(a)
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.
(b)
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:
[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.
(c)
The Board of Appeals, in the granting of use
variances, shall grant the minimum variance that it shall deem necessary
and adequate to address the unnecessary hardship proved 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.
(3)
Area variances.
(a)
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, or pursuant to § 180-31B(2), to grant area variances as defined herein.
(b)
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:
[1]
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;
[2]
Whether the benefit sought by the applicant
can be achieved by some method, feasible for the applicant to pursue,
other than an area variance;
[3]
Whether the requested area variance is substantial;
[4]
Whether the proposed variance will have an adverse
effect or impact on the physical or environmental conditions in the
neighborhood or district; and
[5]
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.
(c)
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.
(4)
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.
[Amended 9-21-1992 by L.L. No. 8-1992; 9-21-1998 by L.L. No.
7-1998]
A.
Meetings, minutes, records. Meetings of such Board
of Appeals shall be open to the public to the extent provided in Article
7 of the Public Officers Law. Such Board of Appeals 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 examinations and other official actions.
B.
Filing requirements. Every rule and regulation and
every amendment or repeal thereof, and every order, requirement, decision
or determination of the Board of Appeals shall be filed in the office
of the Village Clerk within five business days and shall be a public
record.
C.
Assistance to Board of Appeals.
(1)
Such Board 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 of Trustees. Such department, agency or employee may be reimbursed
for any expenses incurred as a result of such assistance.
(2)
The Zoning Board of Appeals may, at its discretion,
request an advisory opinion by the Planning Board on area variances
as it deems necessary. The Zoning Board shall receive an advisory
opinion from the Planning Board on all use variances.
D.
Hearing appeals. The jurisdiction of the Board of
Appeals 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 the administrative official
charged with the enforcement of any local law adopted pursuant to
this article. The concurring vote of a majority of the members of
the Board of Appeals shall be necessary to reverse any order, requirement,
decision or determination of any such administrative official or to
grant a use variance or area variance. Such appeal may be taken by
any person aggrieved or by any officer, department, board or bureau
of the village.
E.
Time of appeal. Such appeal shall be taken within
60 days after the filing in the Village Clerk's office of any order,
requirement, decision, interpretation or determination of the administrative
official charged with the enforcement of such local law 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.
F.
Stay upon appeal. An appeal shall stay all proceedings
in furtherance of the action appealed from, unless the administrative
official charged with the enforcement of such local law, from whom
the appeal is taken, certifies to the Board of Appeals, 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 Board of Appeals or by a court of
record on application, on notice to the administrative official from
whom the appeal is taken and on due cause shown.
G.
Hearing on appeal. The Board of Appeals 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 Board prior to the
hearing of such appeal. Upon the hearing, any party may appear in
person, or by agent or attorney.
H.
Time of decision. The Board of Appeals shall decide
upon the appeal within 62 days after the conduct of said hearing.
The time within which the Board of Appeals must render its decision
may be extended by mutual consent of the applicant and the Board.
I.
Filing of decision and notice. The decision of the
Board of Appeals on the appeal shall be filed in the office of the
Village Clerk within five business days after the day such decision
is rendered, and a copy thereof mailed to the applicant.
J.
Notice to planning agency. At least five days before
such hearing, the Board of Appeals shall mail notices to the County
Planning Agency as required by § 239-m of the General Municipal
Law, which notice shall be accompanied by a full statement of the
matter under consideration, as defined in Subdivision 1 of § 239-m
of the General Municipal Law.
K.
Compliance with State Environmental Quality Review
Act. 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 Title
6, Part 617, of the New York Codes, Rules and Regulations.
L.
Rehearing. A motion for the Zoning Board of Appeals
to hold a rehearing to review any order, decision or determination
of the Board not previously reheard may be made by any member of the
Board. A unanimous vote of all members of the Board then present is
required for such rehearing to occur. Such rehearing is subject to
the same notice provisions as an original hearing. Upon such rehearing
the Board may reverse, modify or annul its original order, decision
or determination upon the unanimous vote of all members then present,
provided that the Board finds that the rights vested in persons acting
in good faith in reliance upon the reheard order, decision or determination
will not be prejudiced thereby.
