A Board of Appeals is hereby created as provided
by law.
The Board of Appeals in a specific case, after
public notice and hearing, shall decide any question or dispute as
to the meaning or intent of any word, phrase, provision, requirement
or regulation contained in this chapter, whether brought before it
by any municipal officer or agency or by an interested person.
[Amended 3-19-1997 by Ord. No. 3-1997]
A.
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 ordinance or 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.
B.
AREA VARIANCE
USE VARIANCE
Definitions. As used in this § 197-81, the following words shall have the following meanings:
The authorization by the Zoning Board of Appeals for the
use of land in a manner which is not allowed by the dimensional or
physical requirements of the applicable zoning regulations.
The authorization by the Zoning Board of Appeals for the
use of land for a purpose which is otherwise not allowed or is prohibited
by the applicable zoning regulations.
C.
Use variances.
(1)
The Board of Appeals, on appeal from the decision
or determination of the administrative official charged with the enforcement
of such ordinance or local law, shall have the power to grant use
variances, as defined herein.
(2)
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:
(a)
The applicant cannot realize a reasonable return,
provided that lack of return is substantial as demonstrated by competent
financial evidence;
(b)
The alleged hardship relating to the property
in question is unique and does not apply to a substantial portion
of the district or neighborhood;
(c)
The requested use variance, if granted, will
not alter the essential character of the neighborhood; and
(d)
The alleged hardship has not been self-created.
(3)
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 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.
D.
Area variances.
(1)
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 ordinance or local law,
to grant area variances as defined herein.
(2)
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 whether:
(a)
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;
(b)
The benefit sought by the applicant can be achieved
by some method feasible for the applicant to pursue, other than an
area variance;
(c)
The requested area variance is substantial;
(d)
The proposed variance will have an adverse effect
or impact on the physical or environmental conditions in the neighborhood
or district; and
(e)
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.
(3)
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.
E.
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 ordinance or local law and shall be imposed for
the purpose of minimizing any adverse impact such variance may have
on the neighborhood or community.
F.
To facilitate public notification, the applicant shall
prepare a public notification list using the most current City of
Rye Tax Maps and Tax Assessment Roll, showing the Tax Map sheet, block
and lot number, the owner's name and the owner's mailing address for
each property located wholly or partially within 300 feet of the perimeter
of the property that is the subject of the application. The applicant
shall deliver a copy of the public notice provided by the City Clerk
to all of the property owners contained on the public notification
list by mail in accordance with the following requirements:
[Amended 3-10-2010 by L.L. No. 4-2010[1]]
(1)
The
mailing shall be limited solely to the public notice provided to the
applicant by the City Clerk.
(2)
The
public notice shall be mailed to all property owners by certified
mail with certificate of mailing (no return receipt necessary) at
a post office or official depository of the Postal Service, at least
10 days prior to the date of the public hearing.
(3)
At
least five business days prior to the public hearing, the subdivider
shall provide to the City Clerk all certificates of mailing.
(4)
In
accordance with General City Law, at least five days prior to the
public hearing, the City will publish a notice regarding the public
hearing in the official newspaper of the City. The applicant shall
be responsible for payment of all fees associated with such publication
and any subsequent publication necessary.
[1]
Editor's Note: This local law provided that it shall take
effect 5-1-2010.
[Amended 11-18-1959; 3-21-1962 by L.L. No. 2-1962; 10-24-1963 by L.L. No.
7-1963; 4-1-1964 by L.L. No. 6-1964; 6-21-1976 by L.L. No. 10-1976; 3-5-1980 by L.L. No. 3-1980; 5-6-1981 by L.L. No. 3-1981; 2-18-1985 by L.L. No. 17-1985; 8-15-1990 by L.L. No. 14-1990; 2-5-1992 by L.L. No. 2-1992; 1-20-1999 by L.L. No. 2-1999]
The Board of Appeals may in a specific case,
after public notice and hearing and subject to appropriate conditions
and safeguards, determine and grant special exceptions to the regulations
herein established, in harmony with their general purpose and intent,
as follows:
A.
Expansion of a nonconforming use: permit the expansion
of nonconforming uses or buildings upon the land occupied by such
uses at the time such uses become nonconforming or on land adjoining,
provided that such adjoining land was under the same ownership as
the land in question at that time and provided that there has been
no substitution of a new use for the original nonconforming use and
provided that such extension or extensions of nonconforming uses shall
not exceed in all 30% of the floor area of the building containing
the nonconforming use at the time it became nonconforming, and the
expansion or extension of a nonconforming use shall not exceed in
all an increase of 30% in the intensity of the use at the time it
became nonconforming, which percentage shall be related to number
of employees, hours of operation, number of vehicles or such other
characteristics or combination of characteristics as the Board of
Appeals determines as the most accurate measure of the intensity of
the particular use. In each case, the Board shall give consideration
to and make a finding that the following conditions prevail prior
to approving a special exemption:
B.
Expansion into a more restricted district: permit
the expansion of a use or building, within the same lot as such lot
existed at the time the district boundary was established, into a
contiguous more restricted district, but in no case for a distance
of more than 25 feet into the more restricted district.
C.
Substitution for a nonconforming use: permit a substitution for an existing nonconforming use, provided that such substitution is in accordance with the provisions of § 197-5A(2).
D.
Construction of a single-family dwelling on a nonconforming lot: permit the construction of a single-family dwelling on a lot that does not conform to the requirements of the district in which it is located, subject to the provisions of § 197-37.
F.
Reduction of side yards and waiving of off-street parking requirements: reduce to not less than eight feet the required side yards for a dwelling proposed to be converted for up to four families in RA-1, RA-2, RA-3, RA-4 and B-3 Districts, as provided in Article VIII, Tables of Regulations, and waive off-street parking requirements for such proposed conversions in RA-3 Districts where the Building Inspector finds it impossible to provide the required parking.
H.
Issue permits: grant a permit wherever it is provided
in this chapter that the approval of the Board of Appeals is required.
I.
Permit the use of floor space in existing buildings
in the B-2 Central Business District which is in excess of the maximum
permitted in the district on the effective date of this chapter, provided
that the total usable space in the building will not exceed a floor-area-to-lot-area
ratio of 2.80 and the excess floor space will be used for a use permitted
in the district, which shall not include the expansion of a nonconforming
use.
K.
Permit the filming of movies, commercials, documentaries,
serials, shows, performances or other similar events and activities,
including still photography in excess of filming permitted as an accessory
use, subject to the following requirements and limitations:
(2)
The Board shall deny any application for a special
exception which in its judgment will be detrimental to the neighborhood
because of anticipated excessive noise, illumination or other effect
caused by the proposed filming.
