A. 
There shall be a Board of Zoning Appeals consisting of five members appointed by the Board of Trustees.
A1.
Alternate members.
[Added 3-8-2004 by L.L. No. 1-2004]
1.
Pursuant to the Municipal Home Rule Law, Village Law § 7-712(11) is hereby repealed and superseded in its application to the Village of Atlantic Beach.
2.
Subject to the approval of the Board of Trustees, the Mayor may appoint not more than three alternate members of the Board of Appeals, to serve in order of seniority in place of any members of the Board of Appeals, or senior alternate members, who are unable for any reason to attend any particular meeting of the Board. The alternate members of the Board shall have all of the powers and duties of regular members at such times as the alternate members are serving. Such alternate members shall be appointed for terms of one official year each.
B. 
The Board of Zoning Appeals shall, consistent with the Village Law of the State of New York, determine its own rules and procedure governing, among other things, the manner of bringing on appeals and applications for hearing, the notice to be given of its hearings in addition to statutory requirements, and the date and time of hearings and decisions.
C. 
The Board of Appeals shall investigate and report upon all matters referred to it by the Board of Trustees.
D. 
The Board of Appeals shall have all of the powers granted by the Village Law and the following powers:
(1) 
Variance powers. The Board of Appeals shall have power to vary or modify the application of the regulations of this chapter by granting use and/or area variances, subject to the mandatory criteria therefor set forth at Article 7 of the Village Law, so that the spirit of this chapter shall be observed, public safety and welfare secured and substantial justice done.
(a) 
Where any application before the Board of Zoning Appeals requires the removal of existing trees from the site, the Board of Zoning Appeals shall review the application for the purpose of considering the preservation of such trees. The application shall contain a specific plan, filed with the Department of Buildings, containing a tree legend which will identify by number, species and caliper (four inches or more) those trees to be preserved, removed and/or replaced. In reviewing the application, the Board of Zoning Appeals shall consider the following criteria:
[1] 
The condition of the trees with respect to disease and danger of falling, proximity to existing or proposed structures and interference with utility services.
[2] 
The necessity of the removal or alteration of the tree in question.
[3] 
Compliance with regulations of the New York State Department of Environmental Conservation and similar regulations if the proposed tree removal or alteration site is adjacent to freshwater wetland boundaries.
[4] 
The character established at the proposed site of removal or alteration with respect to existing tree density.
[5] 
The impact of any removal or alteration upon existing screening of any road or highway bordering the property.
[6] 
The recommendations of the Department of Buildings, which shall review the site plan for tree preservation with a landscape architect.
(2) 
Special exceptions. Whenever a use, or the location thereof, is permitted only if the Board of Zoning Appeals shall approve thereof, the Board of Appeals may, in a specific case and after notice and public hearing, authorize such permissive use and its location within the district in which this chapter specifies the permissive use may be located, subject, however to the following:
(a) 
Before such approval shall be given, the Board of Zoning Appeals shall determine that:
[1] 
The use will not prevent the orderly and reasonable use of adjacent properties or of properties in adjacent use districts;
[2] 
The use will not prevent the orderly and reasonable use of permitted or legally established uses in the district wherein the proposed use is to be located or of permitted or legally established uses in adjacent use districts;
[3] 
The safety, the health, the welfare, the comfort, the convenience or the order of the Village will not be adversely affected by the proposed use and its location; and
[4] 
The use will be in harmony with and promote the general purposes and intent of this chapter.
(b) 
In making such determination, the Board of Zoning Appeals shall also give consideration, among other things, to:
[1] 
The character of the existing and probable development of uses in the district, and the peculiar suitability of such district for the location of any of such permissive uses.
[2] 
The conservation of property values and the encouragement of the most appropriate uses of land.
[3] 
The effect that the proposed use may have in terms of the creation of undue increase of vehicular traffic congestion on public streets, highways or waterways, or the monopolization of available on-street or off-street parking spaces.
[4] 
The availability of adequate and proper public or private facilities for the treatment, removal or discharge of sewage, refuse or effluent (whether liquid, solid, gaseous or otherwise) that may be caused or created by or as a result of the use.
[5] 
Whether the use, or materials incidental thereto or produced, may give off obnoxious gases, odors, smoke or soot.
[6] 
Whether the use will cause disturbing emission of electrical discharges, dust, light, vibration or noise.
[7] 
Whether the operations in pursuance of the use will cause undue interference with the orderly enjoyment by the public of parking or of recreational facilities, if existing, or if proposed by any competent governmental agency.
[8] 
The necessity for bituminous-surfaced space for purposes of off-street parking of vehicles incidental to the use, and whether such space is reasonably adequate and appropriate and can be furnished by the owner of the plot sought to be used within or adjacent to the plot wherein the use shall be had.
[9] 
Whether a hazard to life, limb or property because fire, flood, hurricane, wind storm, erosion or panic may be created by reason of or as a result of the use or by the structures to be used therefor or by the inaccessibility of the property or structures thereon for the convenient entry and operation of fire and other emergency apparatus or by the undue concentration or assemblage of persons, or inability to evacuate persons from such plot.
[10] 
Whether the use or the structures to be used therefor will cause an overcrowding of land or undue concentration of population.
[11] 
Whether the plot area is sufficient, appropriate and adequate for the use and the reasonable anticipated operation and expansion thereof.
[12] 
The physical characteristics and topography of the land.
[13] 
Whether the use to be operated is unreasonably near to a religious use, school, recreational area or other place of public assembly.
[14] 
In applications seeking special exception uses, the Board of Zoning Appeals shall give consideration to the preservation of existing trees on the site. An application for a special exception use shall contain a specific plan, filed with the Department of Buildings, containing a tree legend which will identify by number, species and caliper (four inches or more), those trees to be preserved, removed and/or replaced. In reviewing the application, the Board of Zoning Appeals shall consider the following criteria:
[a] 
The condition of the tree with respect to disease and danger of falling, proximity to existing or proposed structures and interference with utility services.
[b] 
The necessity of the removal or alteration of the tree in question.
[c] 
Compliance with regulations of the New York State Department of Environmental Conservation and similar regulations if the proposed tree removal or alteration site is adjacent to freshwater wetland boundaries.
[d] 
The character established at the proposed site of removal or alteration with respect to existing tree density.
[e] 
The impact of any removal or alteration upon existing screening of any road or highway bordering the property.
[f] 
The recommendations of the Department of Buildings, which shall review the site plan for tree preservation with a landscape architect.
(c) 
Each application for a special exception shall be accompanied by a plot plan prepared by a registered architect, a licensed professional engineer or licensed surveyor, showing the location of each structure proposed to be erected on the plot which is the subject of said application and showing the dimensions of each such structure. The granting by the Board of Zoning Appeals of any such application shall be limited to structures of the dimensions shown on said plan and located as shown thereon unless the determination of said Board making such grant shall expressly provide otherwise.
(3) 
The Board of Zoning Appeals shall, in authorizing such permissive uses, impose such conditions and safeguards as it may deem appropriate, necessary or desirable to preserve and protect the spirit and objectives of this chapter.
After filing an application for a variance or a special exception with the Board of Zoning Appeals, and payment of the requisite fees, the Board of Zoning Appeals shall fix a time and place for a public hearing thereon and shall give notice thereof by publishing a notice thereof in accordance with the Village Law. The Board may also promulgate rules requiring any further notice as it may deem necessary to ensure that there is proper public input at hearings.
[Added 4-14-2008 by L.L. No. 2-2008]
A. 
Legislative intent.
(1) 
In the enactment of Subsection B(2) of this section, it is the intent of the Board of Trustees, pursuant to its authority under § 10(1)(ii)(e)(3) of the Municipal Home Rule Law of the State of New York, to supersede § 7-712-a(12) of the Village Law of the State of New York in its application to the Village of Atlantic Beach as set forth hereinbelow. Section 7-712-a(12) was first enacted by the New York State Legislature as Chapter 208 of the Laws of 1993.
(2) 
Prior to 2002, the zoning authority over properties in the Village of Atlantic Beach was vested in the Town of Hempstead. Thereafter, such authority was transferred by operation of state law and a public referendum to the government of the Village of Atlantic Beach. However, a technical anomaly has now come to the fore, in respect to the transfer of the zoning authority, concerning the transfer of the statutory rehearing authority of Village Law § 7-712-a(12). Specifically, in 2007, the Board of Zoning Appeals of the Village had proceeded to avail itself of the rehearing authority in response to a certain 1997 decision of the Town of Hempstead Board of Zoning Appeals granting a variance. Upon the rehearing, the 1997 decision was vacated and reversed, and the variance was denied. Subsequently, a court decision was issued in an Article 78 proceeding, voiding the decision on rehearing, on the sole ground that the precise language of Village Law § 7-712-a(12) does not encompass rehearings of past town zoning decisions by a village zoning board. Now, by the adoption of this section, it is the intent of the Board of Trustees to solve that problem by superseding Village Law § 7-712-a(12) with appropriately modified language. This new language, in sum and substance, expressly and unambiguously states and confirms that the rehearing authority of the Village’s Board of Zoning Appeals does and shall extend to and encompass rehearings of past decisions of the Board of Zoning Appeals of the Town of Hempstead and that, in regard to past decisions of the Town Zoning Board, the Village’s Zoning Board does and shall have authority to rehear Town Zoning Board decisions which have not already been reheard by the Village Zoning Board after the effective date of this section. This section will ensure that the transfer of rehearing authority is not thwarted by statutory language that does not technically account for the peculiar eventuality of an intermunicipal transfer. All other substantive limitations and qualifying elements of Village Law § 7-712-a(12) for the exercising of the rehearing authority are unchanged.
(3) 
Finally, it is asserted that the subject matter of this section is not disqualified from application of the Village’s supersession powers by reason of state preemption, either express or implied. Village Law § 7-712-a(12) does not contain an express prohibition against amendment or supersession in this instance. Moreover, there is no basis to infer the existence of an implied preemption in this instance. Indeed, this measure does not alter any mandatory standards for grant or denial of zoning-based relief and has no potential to create confusion or uncertainty in the administration of zoning regulations outside of Atlantic Beach. In sum, there is no superior interest in the State of New York in maintaining Village Law § 7-712-a(12) as a uniform statewide standard. Accordingly, this section represents a valid exercise by the Village of its supersession authority of § 10(1)(ii)(e)(3) of the Municipal Home Rule Law of the State of New York.
B. 
Rehearing authority.
(1) 
Rehearing of past decisions of the Board of Zoning Appeals of the Village of Atlantic Beach. 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 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.
(2) 
Rehearing of past decisions of the Town of Hempstead Board of Zoning Appeals. A motion for the Village's Board of Zoning Appeals to hold a rehearing to review any order, decision or determination of the Board of Zoning Appeals of the Town of Hempstead affecting real property in the Village of Atlantic Beach not previously reheard after the effective date of this Subsection B(2) may be made by any member of the Village Board of Zoning Appeals. A unanimous vote of all members of the Village Board of Zoning Appeals then present is required for such rehearing to occur. Such rehearing is subject to the same notice provisions as an original hearing before the Village Board of Zoning Appeals. Upon such rehearing the Board may reverse, modify or annul the original order, decision or determination of the Board of Zoning Appeals of the Town of Hempstead upon the unanimous vote of all members then present, provided the Village Board of Zoning Appeals 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.
Every variance or special exception granted by the Board of Zoning Appeals in pursuance of the provisions of this chapter shall become null, void and of no further force and effect, unless:
A. 
A permit shall have been issued pursuant thereto within four months after the filing of the decision of the Board of Zoning Appeals with the Village Clerk;
B. 
The use so granted shall have been actually commenced upon the premises, or the project for which a variance or special exception or special use shall have been granted by the Board of Zoning Appeals shall have been actually commenced, within four months after issuance of the permit; provided, however, that excavation for a building foundation shall not be deemed a commencement of the project within the meaning of this section; and
C. 
The project shall have been completed and a certificate of occupancy shall have been issued within two years after the date of the issuance of the permit therefor.
The Board of Zoning Appeals may, for good cause shown, grant a longer period of time for the issuance of a permit or commencement and completion of a project in pursuance thereof, than that herein provided either upon the granting of the variance or application for special uses or, thereafter, upon application made to it for such extension; provided, however, that such application shall be made before or within one year after the time for the issuance of a permit has expired. In determining whether good cause existed for such extension, the Board of Zoning Appeals shall consider, among other things, the nature and extent of the construction and the complexity thereof, the claimed difficulty tending to delay construction, availability of utilities, strikes, scarcity of labor or materials, war, or acts of God.
In addition to any other uses made available by special exception elsewhere in this chapter, the Board of Zoning Appeals may, after public notice and hearing, permit the following uses in the districts designated:
A. 
In the A and C Residence Districts:
(1) 
Religious uses.
(2) 
Educational uses.
B. 
In the B Business District:[1]
(1) 
Any use of the same general character as any of the uses expressly permitted in the B Business District by this chapter.
(2) 
Accessory uses on the same lot with and customarily incidental to any use expressly permitted in the B Business District by this chapter or permitted pursuant to this section.
(3) 
Amusement-ride facilities on a temporary basis not to exceed 10 days' duration.
[1]
Editor's Note: The B Business District was eliminated 1-13-2020 by L.L. No. 1-2020. See now Art. V, C Residence District (C).
C. 
In a Marine Recreation District:
(1) 
Amusement-ride facilities on a temporary basis not to exceed 10 days' duration.
D. 
In any district:
(1) 
Parking fields, either public or private, for the parking of passenger vehicles only, but not for display or sale of automobiles.
(2) 
Parking of automobiles in the minimum area required for the front yard setback.
(3) 
Fire district use.
(4) 
Public utility structures, including telecommunications towers or antennas.